EXHIBIT 10.29
PURCHASE AND SALE AGREEMENT
BY AND AMONG
MPT OPERATING PARTNERSHIP, L.P.
("MPT"), AND
MPT OF BUCKS COUNTY HOSPITAL, L.P.
("MPT HOSPITAL");
AND
BUCKS COUNTY ONCOPLASTIC INSTITUTE, LLC,
(THE "SELLER"),
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, M.D., ("▇▇▇▇▇▇▇▇▇▇")
AND
M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇")
(COLLECTIVELY, THE "PRINCIPALS"), AND
DSI FACILITY DEVELOPMENT LLC,
A DELAWARE LIMITED LIABILITY COMPANY
("DEVELOPER")
DATED AS OF MARCH 3, 2005
TABLE OF CONTENTS
Page
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ARTICLE I DEFINED TERMS ................................................. 1
Section 1.1 Certain Defined Terms ..................................... 1
ARTICLE II ASSIGNMENT OF REAL ESTATE SALES CONTRACT ..................... 9
Section 2.1 Assignment ................................................ 9
Section 2.2 Consideration ............................................. 10
Section 2.3 No Assumption of Liabilities .............................. 10
Section 2.4 Special Purpose Tenant .................................... 10
Section 2.5 Alternative Structure ..................................... 10
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER ..... 11
Section 3.1 Organization .............................................. 11
Section 3.2 Authorization; Enforcement, Absence of Conflicts .......... 11
Section 3.3 Absence of Conflicts ...................................... 12
Section 3.4 Consents and Approvals .................................... 12
Section 3.5 Financial Statements ...................................... 12
Section 3.6 No Undisclosed Liabilities ................................ 12
Section 3.7 No Default under the Real Estate Sales Contract ........... 12
Section 3.8 Absence of Changes ........................................ 12
Section 3.9 Physicians ................................................ 13
Section 3.10 Taxes ..................................................... 13
Section 3.11 Real Property ............................................. 13
Section 3.12 Compliance with Environmental Laws ........................ 15
Section 3.13 Litigation ................................................ 15
Section 3.14 Contracts, Obligations and Commitments .................... 16
Section 3.15 Licenses .................................................. 16
Section 3.16 Accreditation; Medicare and Medicaid;
Third Party Payors ........................................ 16
Section 3.17 Healthcare Regulatory Matters ............................. 16
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Section 3.18 ▇▇▇▇-▇▇▇▇▇▇ Obligations ................................... 17
Section 3.19 Medical Staff Matters ..................................... 17
Section 3.20 Compliance with Law ....................................... 18
Section 3.21 Intangible Property ....................................... 18
Section 3.22 Records ................................................... 18
Section 3.23 Subsidiaries .............................................. 18
Section 3.24 Brokers ................................................... 18
Section 3.25 Representations Complete .................................. 18
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE DEVELOPER .............. 19
Section 4.1 Organization .............................................. 19
Section 4.2 Authorization; Enforcement, Absence of Conflicts .......... 19
Section 4.3 Binding Agreement ......................................... 20
Section 4.4 Financial Statements ...................................... 20
Section 4.5 No Undisclosed Liabilities ................................ 20
Section 4.6 Possession of Permits ..................................... 20
Section 4.7 Trade Relations ........................................... 20
Section 4.8 Compliance with Law ....................................... 20
Section 4.9 Litigation ................................................ 21
Section 4.10 Records ................................................... 21
Section 4.11 Brokers ................................................... 21
Section 4.12 Representations Complete .................................. 21
ARTICLE V REPRESENTATIONS AND WARRANTIES OF MPT AND THE COMPANIES........ 21
Section 5.1 Organization .............................................. 21
Section 5.2 Authorization; Enforcement, Absence of Conflicts .......... 21
Section 5.3 Absence of Conflicts ...................................... 22
Section 5.4 Binding Agreement ......................................... 22
Section 5.5 Litigation ................................................ 22
Section 5.6 Possession of Permits ..................................... 23
Section 5.7 Compliance with Law ....................................... 23
Section 5.8 Brokers ................................................... 23
Section 5.9 Representations Complete .................................. 23
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ARTICLE VI PRE-CLOSING COVENANTS ........................................ 23
Section 6.1 No Shop ................................................... 23
Section 6.2 Access .................................................... 24
Section 6.3 Confidentiality ........................................... 24
Section 6.4 Real Estate Sales Contract ................................ 25
Section 6.5 Regulatory and other Authorizations,
Notices and Consents ...................................... 25
Section 6.6 Mutual Covenants .......................................... 25
Section 6.7 Schedule Updates. From the date hereof until the Closing
Date, MPT and the Company, ................................ 25
Section 6.8 Conduct of Business by the Seller Pending the Closing ..... 26
Section 6.9 Public Announcements ...................................... 26
Section 6.10 Advances .................................................. 26
SECTION 6.11 Guarantee ................................................. 27
ARTICLE VII CLOSING CONDITIONS .......................................... 28
Section 7.1 Conditions to the Obligations of the Seller ............... 28
Section 7.2 Conditions to the Obligations of MPT and the Company ...... 29
ARTICLE VIII CLOSING .................................................... 30
Section 8.1 Closing Date .............................................. 30
Section 8.2 The Seller's Closing Date Deliverables .................... 30
Section 8.3 Closing Date Deliverables of the Developer ................ 32
Section 8.4 Closing Date Deliverables of MPT and/or the Company ....... 33
Section 8.5 Commitment Fee ............................................ 33
ARTICLE IX TERMINATION .................................................. 34
Section 9.1 Termination Prior to Closing .............................. 34
Section 9.2 Notice of Termination Prior to Closing .................... 34
ARTICLE X POST CLOSING COVENANTS ........................................ 34
Section 10.1 JCAHO Compliance .......................................... 34
Section 10.2 HIPAA Compliance .......................................... 34
Section 10.3 Necessary Permits ......................................... 34
Section 10.4 Participation in Government Programs ...................... 34
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Section 10.5 Compliance with Whole Hospital Exception .................. 34
Section 10.6 Post-Closing Access to Information ........................ 35
ARTICLE XI INDEMNIFICATION .............................................. 35
Section 11.1 Indemnification of MPT and Company ........................ 35
Section 11.2 MPT's Agreement to Indemnify .............................. 35
Section 11.3 Notification and Defense of Claims ........................ 36
Section 11.4 Exclusive Remedy .......................................... 37
Section 11.5 Limitations on Claims ..................................... 37
Section 11.6 Insured Losses ............................................ 37
ARTICLE XII DISPUTE RESOLUTION .......................................... 38
Section 12.1 Governing Law, Jurisdiction and Venue ..................... 38
ARTICLE XIII MISCELLANEOUS .............................................. 38
Section 13.1 Assignment ................................................ 38
Section 13.2 Notice .................................................... 38
Section 13.3 Syndication ............................................... 39
Section 13.4 Securities Offering and Filings ........................... 39
Section 13.5 Expenses .................................................. 40
Section 13.6 Captions .................................................. 40
Section 13.7 Interpretation ............................................ 40
Section 13.8 Entire Agreement; Modification ............................ 41
Section 13.9 Schedules and Exhibits .................................... 41
Section 13.10 Severability .............................................. 41
Section 13.11 Construction .............................................. 41
Section 13.12 Further Assurances ........................................ 41
Section 13.13 Counterparts .............................................. 41
Section 13.14 Binding Effect ............................................ 41
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered into as
of March 3, 2005, by and among MPT OPERATING PARTNERSHIP, L.P. ("MPT") and
MPT OF BUCKS COUNTY HOSPITAL, L.P. ("MPT Hospital"), each a Delaware limited
partnership; and BUCKS COUNTY ONCOLPLASTIC INSTITUTE, LLC, a Delaware limited
liability company (the "Seller"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, M.D. ("▇▇▇▇▇▇▇▇▇▇"), and
M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), each a resident of the State of Tennessee
(each a "Principal" and, collectively, the "Principals"), and DSI FACILITY
DEVELOPMENT LLC, a Delaware limited liability company (the "Developer").
WITNESSETH:
WHEREAS, the Seller plans to enter into an Agreement of Sale (the "Real Estate
Sales Contract") with Glenview Land Holdings, L.P. ("Glenview"), relating to the
purchase and sale of the Hospital Real Property (as hereinafter defined) and the
MOB Real Property (as hereinafter defined) (collectively the "Real Property");
WHEREAS, MPT has caused MPT Hospital to be formed for the purpose of acquiring
the Real Property and developing, constructing and leasing the same and the
Improvements (as hereinafter defined) to the Seller;
WHEREAS, the Seller desires to assign the right to acquire the Real Property
pursuant to the Real Estate Sales Contract to MPT Hospital and MPT Hospital
desires to accept said assignment and assume the Seller's obligations with
respect thereto;
WHEREAS, MPT Hospital desires to engage the Developer to develop the Real
Property and construct the Improvements thereon pursuant to the terms of the
Development Agreement;
WHEREAS, the Seller desires to lease from MPT Hospital the Real Property and all
Improvements now or hereafter located thereon (the "Lease"); and
WHEREAS, the parties desire to provide for the advancement of certain funds by
MPT or its Affiliates to Seller pending the Closing (as herein defined) upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1 CERTAIN DEFINED TERMS. Capitalized terms used herein shall have the
respective meanings ascribed to them in this Section 1.1.
"Affiliate" shall have the meaning set forth in Section 13.7(i).
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"Agreement" means this Agreement, and all Exhibits and Schedules hereto.
"Assets" shall have the meaning set forth in Section 2.1.
"Balance Sheet Date" shall have the meaning set forth in Section 3.5 hereof.
"Business" means the Seller's lease and operation of the Hospital and the MOB
and the engagement in and pursuit and conduct of any business ventures or
activities reasonably related thereto.
"Business Day" means any day, other than a Saturday or Sunday, that is neither a
legal holiday nor a day on which banking institutions in New York, New York are
authorized or required by law, regulation or executive order to close.
"Claim" shall have the meaning set forth in Section 3.3 hereof.
"Closing" shall have the meaning set forth in Section 8.1 hereof.
"Closing Date" shall have the meaning set forth in Section 8.1 hereof.
"Code" means the United States Internal Revenue Code of 1986, as amended through
the date hereof, and all regulations thereunder. Any reference herein to a
specific section or sections of the Code shall be deemed to include a reference
to any corresponding provision of future law.
"Commitment Amount" means the approximate amount of Thirty Eight Million and
No/100 Dollars ($38,000,000); provided however, the total Commitment Amount
shall not exceed the lesser of (i) the appraised value of the Real Property and
the Improvements, (ii) the replacement cost of the Hospital and the MOB, or
(iii) an amount that gives an EBITDAR coverage based on the Base Rent (as
defined in the Lease) of at least two hundred percent (200%).
"Commitment Fee" shall have the meaning set forth in Section 8.5 hereof, as
amended.
"Commitment Letter" means that certain Commitment Letter dated October 21, 2004,
by and among Medical Properties Trust, Inc., MPT and the Seller, as amended.
"Company" means MPT Hospital.
"Company Instruments" shall have the meaning set forth in Section 5.2 hereof.
"Confidentiality Agreement" means that certain Confidentiality Agreement dated
August 8, 2004, by and among the Seller, MPT, Medical Properties Trust, Inc. and
the Developer.
"Contracts" shall have the meaning set forth in Section 3.14 hereof.
"Conveyance Documents" shall have the meaning set forth in Section 2.5 hereof.
"Damages" means demands, claims, actions, losses, damages, liabilities,
penalties, Taxes, costs and expenses (including, without limitation, attorneys'
and accountants' fees, settlement costs,
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arbitration costs and any other reasonable expenses for investigating or
defending any Claim or threatened Claim).
"Developer" means DSI Facility Development LLC, a Delaware limited liability
company.
"Developer Balance Sheet Date" shall have the meaning set forth in Section 4.4
hereof.
"Development Agreement" means the Development Agreement between MPT Hospital and
Developer.
"Effective Date" shall mean the date upon which all of the parties hereto have
executed this Agreement.
"EBITDAR" means earnings before the deduction of interest, taxes, depreciation,
amortization and rent, as determined in accordance with GAAP, or the meaning as
set forth in the Lease.
"Environmental Claim" means any claim, action, cause of action, investigation or
notice (written or oral) by any Person alleging actual or potential liability
for investigatory, cleanup or governmental response costs, or natural resources
or property damages, or personal injuries, attorney's fees or penalties relating
to (i) the presence, or release into the environment, of any Hazardous Materials
at any location owned or operated by the Seller or any Affiliate of the Seller,
now or in the past, or (ii) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.
"Environmental Law" means each federal, state, local and foreign law and
regulation relating to pollution, protection or preservation of human health or
the environment including ambient air, surface water, ground water, land surface
or subsurface strata, and natural resources, and including each law and
regulation relating to emissions, discharges, releases or threatened releases of
Hazardous Materials, or otherwise relating to the manufacturing, processing,
distribution, use, treatment, generation, storage, containment (whether above
ground or underground), disposal, transport or handling of Hazardous Materials,
or the preservation of the environment or mitigation of adverse effects thereon
and each law and regulation with regard to record keeping, notification,
disclosure and reporting requirements respecting Hazardous Materials, including,
without limitation, the Resource Conservation and Recovery Act of 1976, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986, the
Hazardous Materials Transportation Act, the Federal Water Pollution Control Act,
the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, the
Safe Drinking Water Act, in each case as amended from time to time and all
similar federal, state and local environmental statutes, ordinances and the
regulations, orders, or decrees now or hereafter promulgated thereunder.
"Excluded Liabilities" shall have the meaning set forth I Section 2.3 hereof.
"GAAP" means United States generally accepted accounting principles.
"Glenview" shall have the meaning set forth in the recitals to this Agreement.
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"Governing Documents" means, with respect to any Person, such Person's charter,
articles or certificate of incorporation, bylaws, limited partnership agreement,
limited liability company agreement, stockholders' agreement or other documents
or instruments which establish the rules, procedures and rights with respect to
such Person' governance, in each case as amended, restated, supplemented and/or
modified and in effect as of the relevant date.
"Governmental Entity" means any national, federal, regional, state, provincial,
municipal, foreign or multinational court or other governmental or regulatory
authority, administrative body or government, department, board, body, tribunal,
instrumentality or commission of competent jurisdiction.
"Government Programs" shall have the meaning set forth in Section 3.16 hereof.
"▇▇▇▇▇▇▇▇" shall mean M.▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a resident of the State of Tennessee.
"Hazardous Materials" means any substance deemed hazardous under any
Environmental Law, including, without limitation, asbestos or any substance
containing asbestos, the group of organic compounds known as polychlorinated
biphenyls, flammable explosives, radioactive materials, infectious wastes,
biomedical and medical wastes, chemicals known to cause cancer or reproductive
toxicity, lead and lead-based paints, radon, pollutants, effluents,
contaminants, emissions or related materials and any items included in the
definition of hazardous or toxic wastes, materials or substances under any
Environmental Law.
"Healthcare Fraud Laws" shall have the meaning set forth in Section 3.17(a)
hereof.
"HIPAA" shall have the meaning set forth in Section 10.2 hereof.
"Hospital" means the hospital facility and related Hospital Improvements to be
constructed on the Hospital Real Property pursuant to the Development Agreement.
"Hospital ▇▇▇▇ of Sale" shall have the meaning set forth in Section 8.2(a)
hereof.
"Hospital Development Costs" means any amount or cost required to be invested,
contributed, expended, and/or incurred by MPT Hospital, its general and/or
limited partners and all of their Affiliates from time to time, including costs
overruns, in connection with, as applicable, the acquisition, development,
construction and lease of the Hospital Real Property, the Hospital Improvements
and the Hospital, whether pursuant to the Hospital Development Agreement or
otherwise in connection with the transactions contemplated by this Agreement.
"Hospital Improvements" means all buildings, improvements, structures and
fixtures, including, without limitation, landscaping, parking lots and
structures, roads, drainage and all above ground and underground utility
structures, equipment systems and other so-called "infrastructure" improvements
and all other improvements constructed for use or used in connection with the
Hospital.
"Hospital Real Property" means those certain parcels of land more particularly
described on Exhibit A attached hereto.
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"Improvements" means the Hospital Improvements and the MOB Improvements.
"Indebtedness" of any Person means, without duplication, (a) all liabilities and
obligations, contingent or otherwise, of any such Person: (i) in respect of
borrowed money (whether secured or unsecured), (ii) under conditional sale or
other title retention agreements relating to property or services purchased
and/or sold by such Person, (iii) evidenced by bonds, notes, debentures or
similar instruments, (iv) for the payment of money relating to a capitalized
lease obligation, (v) evidenced by a letter of credit or a reimbursement
obligation of such Person with respect to any letter of credit, (vi) pursuant to
any guarantee, or (vii) secured by (or for which the holder of such obligation
has an existing right, contingent or otherwise, to be secured by) a Lien on the
assets or property of such Person, and (b) all liabilities and obligations of
others of the kind described in the preceding clause (a) and otherwise that (i)
such Person is responsible or liable for, directly or indirectly, as obligor,
guarantor, surety or otherwise, or (ii) which are secured by a Lien on any of
the assets or property of such Person.
"Indemnified Party" shall have the meaning set forth in Section 11.3(a) hereof.
"Indemnifying Party" shall have the meaning set forth in Section 11.3(a) hereof.
"Intangible Property" shall have the meaning set forth in Section 3.21 hereof.
"JCAHO" shall have the meaning set forth in Section 10.1 hereof.
"Knowledge" means, with respect to any Person, such Person's actual or deemed
knowledge of a particular fact or matter if (i) any of such Person's officers or
directors (or Persons possessing and/or exercising similar authority with
respect to such Person) (a Person's "Knowledge Group") has actual knowledge of
such fact or matter; or (ii) any of such Person's Knowledge Group would
reasonably be expected to discover or otherwise become aware of such fact or
matter after conducting a reasonably diligent inquiry.
"Law" means any federal, state or local statute, law, rule, regulation,
ordinance, order, code, policy or rule of common law, now or hereafter in
effect, and in each case as amended, and any judicial or administrative
interpretation thereof by a Governmental Entity or otherwise, including, without
limitation, any judicial or administrative order, consent, decree or judgment.
"Lease" shall mean set forth in the recital of this Agreement.
"Liability Threshold" shall have the meaning set forth in Section 11.5(a)
hereof.
"Lien" means any mortgage, deed of trust, pledge, hypothecation, assignment,
charge or deposit arrangement, lien (statutory or otherwise) or preference,
security interest or other encumbrance of any kind or nature whatsoever.
"LOI Deposit" shall have the meaning set forth in Section 8.5 hereof.
"Loan Documents" shall have the meaning set forth in Section 2.5 hereof.
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"Material Adverse Effect" means any changes, event(s), occurrence(s) or
effect(s), whether direct or indirect, that, both before and after giving effect
to the transactions contemplated by this Agreement, could, individually or in
the aggregate, reasonably be expected to have a material adverse effect on (i)
the Seller's business, properties, results of operations, assets, revenue,
income, condition (financial or otherwise) or ability to timely satisfy its
obligations or liabilities (whether absolute or contingent) (ii) the Assets, or
(iii) the conduct of the Business or the Seller's ability to perform its
obligations under, and/or consummate the transactions contemplated by, this
Agreement within the time periods specified herein.
"Medicaid" shall have the meaning set forth in Section 3.16 hereof.
"Medicare" shall have the meaning set forth in Section 3.16 hereof.
"MOB" means the medical office building and related MOB Improvements to be
constructed on the MOB Real Property pursuant to the MOB Development Agreement.
"MOB ▇▇▇▇ of Sale" shall have the meaning set forth in Section 8.2(b) hereof.
"MOB Development Costs" means any amount or cost required to be invested,
contributed, expended and/or incurred by MPT MOB and its general and/or limited
partners and all of their Affiliates from time to time, including cost overruns,
in connection with, as applicable, the acquisition, development, construction
and lease of the MOB Property, the MOB Improvements and the MOB, whether
pursuant to the Development Agreement or otherwise in connection with the
transactions contemplated by this Agreement.
"MOB Improvements" means all buildings, improvements, structures and fixtures,
including, without limitation, landscaping, parking lots and structures, roads,
drainage and all above ground and underground utility structures, equipment
systems and other so-called "infrastructure" improvements and all other
improvements constructed for use or used in connection with the MOB.
"MOB Real Property" means those certain parcels of land more particularly
described on Exhibit B.
"MPT" means MPT Operating Partnership, L.P., a Delaware limited partnership.
"MPT Damages" means all Damages which are subject to indemnification by the
Seller and the Developer pursuant to Section 11.1 hereof.
"MPT Hospital" means MPT of Bucks County Hospital, L.P., a Delaware limited
partnership.
"MPT Indemnified Parties" shall have the meaning set forth in Section 11.1
hereof.
"Mortgage Alternative" shall have the meaning set forth in Section 2.5 hereof.
"Non-Prevailing Party" means, with respect to any claim between any parties to
this Agreement, such party determined as the non-prevailing party by a court
with proper jurisdiction.
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"Obligation" shall have the meaning set forth in Section 6.10 hereof.
"Operational Date" means the date on which the construction of the Hospital is,
in accordance with the terms of the Hospital Development Agreement,
substantially complete.
"Ordinary Course of Business" means, with respect to any Person, any action
that: (a) is consistent in nature, scope and magnitude with the past practices
of such Person and is taken in the ordinary course of the normal, day-to-day
operations of such Person; (b) does not require authorization by the board of
directors, shareholders, limited partners or members of such Person (or by any
Person or group of Persons exercising similar authority) and does not require
any other special authorization of any nature; or (c) is similar in nature,
scope and magnitude to actions customarily taken, without any special
authorization, in the ordinary course of the normal, day-to-day operations of
other Persons that are in the same line of business as such Person.
"Permits" shall have the meaning set forth in Section 3.15 hereof.
"Person" means an individual, a corporation, a limited liability company, a
general or limited partnership, an unincorporated association, a joint venture,
a Governmental Entity or another entity or group.
"Physicians" shall have the meaning set forth in Section 3.9 hereof.
"Preliminary Advances" shall have the meaning set forth in Section 6.10 hereof.
"Preliminary Fee" shall have the meaning set forth in Section 8.5 hereof.
"Principals" shall mean, collectively, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇.
"Purchaser" shall mean, collectively, the Company.
"Real Property" means and includes all of the Hospital Real Property described
on Exhibit A and all of the MOB Real Property described on Exhibit B upon which
the Hospital and the MOB, respectively, will be constructed.
"Review Period" shall have the meaning set forth in Section 6.2 hereof.
"Search Reports" means reports of searches made of the uniform commercial code
records of the county in which the Real Property is located, and of the office
of the secretary of state of the state in which the Real Property is located and
in the state in which the principal office of the Seller is located.
"Seller" means Bucks County Oncoplastic Institute, LLC, a Delaware limited
liability company.
"Seller Damages" means all Damages which are subject to indemnification by MPT
pursuant to Section 11.2 hereof.
"Seller Indemnified Parties" shall have the meaning set forth in Section 11.2
hereof.
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"Seller Instruments" shall have the meaning set forth in Section 3.2 hereof.
"Seller Party" and "Seller Parties" shall have the meaning set forth in Section
3.16 hereof.
"Service Provider" means any Person who has rendered or is rendering services to
or on behalf of any of the Seller Parties.
"Special Purpose Entity" means an entity which (i) exists solely for the purpose
of owning and/or leasing all or any portion of the Real Property and conducting
the operation of the Business, (ii) conducts business only in its own name,
(iii) does not engage in any business other than the ownership and/or leasing
all or any portion of the Real Property and the operation of the Business, (iv)
does not hold, directly or indirectly, any ownership interest (legal or
equitable) in any entity or any real or personal property other than the
interest which it owns in the Real Property and the other assets incident to the
operation of the Business, (v) does not have any debt other than as permitted by
the Lease or arising in the ordinary course of the Business and does not
guarantee or otherwise obligate itself with respect to the debts of any other
Person, (vi) has its own separate books, records, accounts, financial statements
and tax returns (with no commingling of funds or assets) and (vii) holds itself
out as being a company separate and apart from any other entity, (viii)
maintains all corporate formalities independent of any other entity.
"Subsidiary" means, with respect to any Person, any Person of which fifty
percent (50%) or more of the total voting power of the voting securities is
owned or controlled (as defined in the definition of "Affiliate" above),
directly or indirectly, by such Person.
"▇▇▇▇▇▇▇▇▇▇" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, M.D., a resident of the State of
Tennessee.
"Taxes" means any and all taxes, charges, fees, levies or other assessments,
including, without limitation, any and all income, gross receipts, excise, real
and personal property (including leaseholds and interests in leaseholds), sales,
use, occupation, transfer, license, ad valorem, gains, profits, gift, minimum
estimated, alternative minimum, social security, unemployment, disability,
premium, recapture, credit, payroll, withholding, severance, stamp, capital
stock, value added leasing, franchise and other taxes or similar charges of any
kind including any interest and penalties on or additions thereto or
attributable to any failure to comply with any requirement regarding any Tax
Return (as hereinafter defined).
"Tax Return" means any return, declaration, filing, report, claim for refund or
information return or other statement relating to Taxes (whether filed with or
submitted to, or required to be filed with or submitted to, any Governmental
Entity), including any schedule or attachment thereto, and including any
amendment or extension thereof.
"Tax Structure" shall have the meaning set forth in Section 6.3 hereof.
"Tax Treatment" shall have the meaning set forth in Section 6.3 hereof.
"Tenant" means the lessees or tenants under the Tenant Leases, if any.
"Tenant Leases" shall have the meaning set forth in Section 3.11(b) hereof.
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"Third Party Claim" shall have the meaning set forth in Section 11.3 hereof.
"Total Development Costs" means the aggregate amount invested, contributed,
expended and/or incurred in connection with the acquisition, development,
construction and lease, as applicable, of the Real Property, the Hospital and
the MOB.
ARTICLE II
ASSIGNMENT OF REAL ESTATE SALES CONTRACT
SECTION 2.1 ASSIGNMENT. Based upon the representations and warranties of the
Seller and the Developer as set forth herein, and upon the terms and conditions
set forth in this Agreement, on the Closing Date (or, in the case of the
assignments of the Real Estate Sales Contract described in Sections 2.1(a) and
2.1(b) below, as soon as practicable following the date hereof, the Seller shall
sell, assign and transfer certain assets of the Seller as provided in this
Section 2.1 (the "Assets"):
(a) The Seller shall sell, assign and transfer to MPT Hospital and MPT Hospital
shall purchase from the Seller, all of the Seller's right, title and interest in
and to the Real Estate Sales Contract as it relates to the Hospital Real
Property, and, in addition, the following assets:
(i) all of the Seller's right, title and interest in and to site plans,
surveys, soil and substrata studies, architectural drawings, plans and
specifications, inspection reports, engineering and environmental plans and
studies, title reports, floor plans, landscape plans and other plans
relating to the Hospital Real Property or the Hospital Improvements, all
warranties and guarantees covering the Hospital Real Property or the
Hospital Improvements, and all existing permits, approvals, licenses,
contracts and applications which pertain to or affect the Hospital Real
Property or the Hospital Improvements (other than any operating permits);
(ii) all of the Seller's right, title and interest in and to all causes of
action, claims and rights in litigation (or which could result in
litigation against any party) pertaining or relating to the Hospital Real
Property or the Hospital Improvements (including, without limitation, any
causes of action, claims or rights in litigation or other rights related to
or arising under the Real Estate Sales Contract of any other contract
respecting the Hospital Real Property or the Hospital Improvements); and
(iii) those assets listed and described on Exhibit C hereto.
(b) The Seller shall sell, assign and transfer to MPT MOB and MPT MOB shall
purchase from the Seller, all of the Seller's right, title and interest in and
to the Real Estate Sales Contract as it relates to the MOB Real Property, and,
in addition, the following assets:
(i) all of the Seller's right, title and interest in and to site plans,
surveys, soil and substrata studies, architectural drawings, plans and
specifications, inspection reports, engineering and environmental plans and
studies, title reports, floor plans, landscape plans and other plans
relating to the MOB Real Property or the MOB Improvements, all warranties
and guarantees covering the MOB Real Property or the MOB Improvements, and
all existing permits, approvals, licenses, contracts and applications which
pertain to
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or affect the MOB Real Property or the MOB Improvements (other than any
operating permits);
(ii) all of the Seller's right, title and interest in and to all causes of
action, claims and rights in litigation (or which could result in
litigation against any party) pertaining or relating to the MOB Real
Property or the MOB Improvements (including, without limitation, any causes
of action, claims or rights in litigation or other rights related to or
arising under the Real Estate Sales Contract or any other contract
respecting the MOB Real Property or the MOB Improvements); and
(iii) those assets listed and described on Exhibit D hereto.
SECTION 2.2 CONSIDERATION. In consideration for the transfer of the Assets, the
Company shall assume and agree to perform in accordance with its terms, all of
the Seller's obligations under the Real Estate Sales Contract.
SECTION 2.3 NO ASSUMPTION OF LIABILITIES. Notwithstanding anything in this
Agreement to the contrary, except for the obligations under the Real Estate
Sales Contract, as specifically set forth in Schedule 2.3 attached hereto, MPT
and the Company shall not assume or agree to pay, satisfy, discharge or perform,
and shall not be deemed by virtue of the execution and delivery of this
Agreement or any other document delivered at the Closing pursuant to this
Agreement, or as a result of the consummation of the transactions contemplated
by this Agreement or such other document, to have assumed, or to have agreed to
pay, satisfy, discharge or perform, and shall not be liable for, any liability,
obligation, contract or Indebtedness of any Seller Party or any other Person,
whether primary or secondary, direct or indirect, including, without limitation,
any liability or obligation relating to the ownership, use or operation of the
Assets prior to Closing, any liability or obligation arising out of or related
to any breach, default, tort or similar act committed by any Seller Party
(including, without limitation, any breach, default or violation of the Real
Estate Sales Contract by any Seller Party)or for any failure of any Seller Party
to perform any covenant or obligation for or during any period prior to Closing
(collectively, the "Excluded Liabilities").
SECTION 2.4 SPECIAL PURPOSE ENTITIES. The Seller is a Special Purpose Entity
with the meaning described in Section 1.1 of this Agreement.
SECTION 2.5 ALTERNATIVE STRUCTURE. The parties acknowledge and agree that, at
MPT's option, in lieu of a lease arrangement from Closing and throughout the
construction phase of the transaction, the transaction contemplated hereby shall
be structured as a construction loan and mortgage, with Seller owning the Real
Property during such construction phase and MPT and the Company acting as
mortgage lender during such construction phase. If MPT exercises such option,
then all loan agreements, mortgages, security agreements and other
documentations (the "Loan Documents") shall be structured in a manner to provide
MPT and the Company with the same protection as if the transaction was
structured in a lease arrangement during the construction phase (the foregoing
alternative structure being referred to herein as the "Mortgage Alternative").
In the event that MPT elects to exercise the Mortgage Alternative option, it
shall notify Seller no later than thirty (30) days prior to the Closing Date
and, in such event, the parties shall execute at Closing the Loan Documents
along with these and other conveyance documents
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(the "Conveyance Documents") which Conveyance Documents shall be placed in
escrow and shall provide for the conveyance of the constructive Real Property
from Seller to the Company in exchange for a purchase price equal to the
principal amount of any outstanding indebtedness evidenced by the Loan
Documents. The Loan Documents and Conveyance Documents shall be in form and
substance mutually acceptable to the parties.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SELLER
With the understanding that MPT and the Company shall rely hereon, and as a
material inducement to MPT and the Company to enter into this Agreement and the
Development Agreement, the Seller hereby represents, warrants and covenants to
MPT and the Company as of the date hereof and as of the Closing Date as follows:
SECTION 3.1 ORGANIZATION. The Seller is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware and the Seller is duly registered as a foreign company in good standing
under the laws of (i) the Commonwealth of Pennsylvania; and (ii) each
jurisdiction in which the nature of the business conducted, or the assets owned,
operated and/or leased, by the Seller requires or makes such qualification
necessary. Schedule 3.1 attached hereto sets forth the ownership of the Seller
and, except as set forth therein, no other Person has, and the Seller has not
offered to any Person, any equity interest in the Seller or any option, warrant
or other right to acquire the same.
SECTION 3.2 AUTHORIZATION; ENFORCEMENT, ABSENCE OF CONFLICTS. The Seller has the
requisite corporate power and authority to conduct its business as it is now
being conducted and as proposed to be conducted and to execute, deliver and
carry out the terms of this Agreement, all documents and agreements necessary to
give effect to the provisions of this Agreement, including the Lease, and to
consummate the transactions contemplated hereby and thereby. All corporate
actions required to be taken by the Seller to authorize the execution, delivery
and performance of this Agreement, the Lease, as well as all documents,
agreements and instruments executed by the Seller which are necessary to give
effect thereto (collectively, the "Seller Instruments") and all transactions
contemplated hereby and thereby, have been duly and properly taken or obtained
in accordance and in compliance with the Seller's Governing Documents. No other
action on the part of the Seller or the Seller's directors or equity owners is
necessary to authorize the execution, delivery and performance of this
Agreement, the Lease, the Seller Instruments and all transactions contemplated
hereby and thereby. This Agreement, the Seller Instruments and all agreements to
which the Seller will become a party hereunder, including the Lease, are and
will constitute the valid and legally binding obligations of the Seller, and are
and will be enforceable against the Seller in accordance with the respective
terms hereof or thereof, except as enforceability may be restricted, limited or
delayed by applicable bankruptcy, insolvency or other similar laws affecting
creditors' rights generally and except as enforceability may be subject to and
limited by general principles of equity (regardless of whether considered in a
proceeding in equity or at law) and by agreement of the parties as set forth
herein.
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SECTION 3.3 ABSENCE OF CONFLICTS. The Seller's execution, delivery and
performance of this Agreement, the Lease and the Seller Instruments, and the
consummation of the transactions contemplated hereby and thereby (including,
without limitation, the assignment of the Real Estate Sales Contract) will not,
with or without the giving of notice and/or the passage of time: (i) violate or
conflict with any provision of the Seller's Governing Documents; (ii) violate or
conflict with any provision of any Law to which the Seller or any of its equity
owners is subject; (iii) violate or conflict with any judgment, order, writ or
decree of any court applicable to the Seller; (iv) result in or cause the
creation of a Lien on the Real Property or any of the Assets; or (v) except as
disclosed on Schedule 3.3, result in the breach or termination of any provision
of, or create rights of acceleration or constitute a default under, the terms of
any indenture, mortgage, deed of trust, contract, agreement or other instrument
to which the Seller is a party or by which the Seller or any of the Assets is
bound.
SECTION 3.4 CONSENTS AND APPROVALS. Except as set forth on Schedule 3.4 attached
hereto, no license, permit, qualification, order, consent, authorization,
approval or waiver of, or registration, declaration or filing with, or
notification to, any Governmental Entity or other Person is required to be made
or obtained by or with respect to the Seller in connection with the execution,
delivery and performance of this Agreement, the Lease or the Seller Instruments,
or the consummation of the transactions contemplated hereby or thereby
(including, without limitation, the assignment of the Real Estate Sales
Contract).
SECTION 3.5 FINANCIAL STATEMENTS. The Seller has previously disclosed to MPT the
financial condition of the Seller as of March 3, 2005 (the "Balance Sheet
Date"), it being understood that Seller is a newly-formed entity with no
financial or operating history.
SECTION 3.6 NO UNDISCLOSED LIABILITIES. Except as set forth on Schedule 3.6
attached hereto, the Seller has no liabilities or obligations, whether absolute,
accrued, contingent or otherwise, including any potential future liability
arising out of acts or omissions which have already occurred, which are not
fully and accurately reflected or reserved against in the Balance Sheet except
for liabilities or obligations that may have arisen in the Ordinary Course of
Business since the Balance Sheet Date (none of which results from, arises out
of, relates to, is in the nature of, or was caused by any breach of contract,
breach of warranty, tort, infringement or violation of law), and no Seller Party
has any Knowledge of any fact, condition or circumstance which could form the
basis of any Claim in respect of any such liability or obligation.
SECTION 3.7 NO DEFAULT UNDER THE REAL ESTATE SALES CONTRACT. The Seller will
provide a true and correct copy of the Real Estate Sales Contract to MPT. The
Real Estate Sales Contract, when executed, will be the valid and legally binding
obligation of the Seller and Glenview enforceable against them in accordance
with its terms. The Real Estate Contract may by its terms be freely assigned by
the Seller to the Company in the manner described herein.
SECTION 3.8 ABSENCE OF CHANGES. Except as set forth on Schedule 3.8 attached
hereto, since the Balance Sheet Date, the Seller has:
(a) except as otherwise provided in this Agreement, conducted its business only
in the Ordinary Course of Business;
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(b) not suffered any change, event or circumstance which has had, or would be
reasonably expected to have, a Material Adverse Effect;
(c) preserved its legal existence and retained its business organization intact;
(d) paid or satisfied all of its material debts, liabilities or obligations as
the same became due;
(e) timely made all applicable filings with Governmental Entities;
(f) not mortgaged, pledged, subjected to Lien, charged, encumbered or granted a
security interest in or to any of its assets (including, without limitation, the
Real Property);
(g) not suffered any material damage, destruction or loss (whether or not
covered by insurance) affecting any of its assets;
(h) not made or suffered any change to its Governing Documents;
(i) maintained its books and records in accordance with GAAP, consistent with
past practices;
(j) not agreed or offered, whether in writing or otherwise, to take, and neither
the Seller nor its stockholders, directors or officers have authorized the
taking of, any action described in Section 3.8(a) through Section 3.8(i) above.
SECTION 3.9 PHYSICIANS. Schedule 3.9 sets forth the names of all of the
physicians who are shareholders, directors or officers of the Seller or who will
be admitted to the staff of the Hospital (the "Physicians").
SECTION 3.10 TAXES. The Seller has filed or caused to be filed all Tax Returns
of the Seller which have become due (taking into account valid extensions of
time to file) prior to the date hereof. Such Tax Returns are accurate and
complete in all material respects, and the Seller has paid or caused to be paid
all Taxes for the periods covered by such Tax Returns, whether or not shown to
be due on such Tax Returns. There are (i) no outstanding Liens for any Taxes
that have been filed by any Governmental Entity against the Seller or the
Business, any of the Assets or the other assets of the Seller (other than for ad
valorem taxes not yet due and payable), and (ii) no claims being asserted in
writing with respect to any Taxes relating to the Seller, the Real Property, the
Business, any of the Assets or any other assets of the Seller for which either
of the Company could be held liable, and the Seller knows of no basis for the
assertion of any such claim. To the Seller's Knowledge, the Real Property has
not been classified under any designation authorized by law to obtain a special
low ad valorem tax rate or to receive a reduction, abatement or deferment of ad
valorem taxes which, in such case, could result in additional, catch-up or
roll-back ad valorem taxes in the future in order to recover the amounts
previously reduced, abated or deferred.
SECTION 3.11 REAL PROPERTY.
(a) The Seller has the right to assign all of its right, title and interest in
and to the Real Estate Sales Contract, free and clear of any and all liens,
mortgages and encumbrances;
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(b) Schedule 3.11(b) attached hereto sets forth an accurate and complete list of
all leases, subleases, commitment letters, letters of intent and other rental
agreements (whether written or oral, now or hereafter in effect), if any, that
grant or will grant a possessory interest in and to any space in the Real
Property or that otherwise have rights with regard to the Real Property or the
Improvements proposed to be constructed thereon (collectively referred to as the
"Tenant Leases"). Schedule 3.11(b) designates which of the Tenant Leases
described therein are with the Seller's referral sources (as determined by any
of the Healthcare Fraud Laws). Schedule 3.11(b) includes amounts of the rent and
security deposit, if any, for each Tenant Lease. The Seller has provided MPT
with complete and correct copies of all Tenant Leases. The Seller shall provide
to the Company prior to Closing Tenant Lease estoppels in form satisfactory to
MPT from all Tenants under the applicable Tenant Leases. Except for the Tenant
Leases and any other items listed in Schedule 3.11(b), there are no purchase
contracts, leases of space, options, rights of first refusal or other written or
oral agreements of any kind whereby any Person will have acquired or will have
any basis to assert any right, title or interest in, or right to the possession,
use, enjoyment or proceeds of, any part or all of the Real Property or the
Improvements;
(c) As of the Closing, none of the Tenant Leases and none of the rents or other
charges payable thereunder, if any, will have been assigned, pledged or
encumbered. Except as set forth on Schedule 3.11(c) attached hereto, as of the
Closing, no brokerage or leasing commissions or other compensation will be due
or payable to any Person with respect to, or on account of, the Lease or any
Tenant Lease or any extensions or renewals thereof, if any, excepting those
agreements entered into or accepted in writing by the Company;
(d) Except as set forth in Schedule 3.11(d) attached hereto: (i) the Tenant
Leases are freely assignable by the Seller to the Company, have not been
modified, amended or assigned, are legally valid, binding and enforceable
against the Seller (and, to the Knowledge of the Seller Parties, against the
other parties thereto) in accordance with their respective terms and are in full
force and effect; (ii) the terms and structure of the Tenant Leases comply with
all Healthcare Fraud Laws; (iii) there are no monetary defaults and no material
nonmonetary defaults by the Seller or, to the Knowledge of the Seller Parties,
any other party to the Tenant Leases; (iv) the Seller has not received written
notice of any default, offset, counterclaim or defense under any of the Tenant
Leases; and (v) no condition or event has occurred which with the passage of
time or the giving of notice or both would constitute a default or breach by the
Seller of the terms of any of the Tenant Leases; and
(e) To Seller's Knowledge, the existing water, sewer, gas and electricity lines,
storm sewer and other utility systems are adequate to serve the utility needs of
the Real Property and the operation of the Hospital and the MOB. To Seller's
Knowledge, all utilities required for the operation of the Business enter the
Real Property through adjoining public streets or through adjoining private land
in accordance with valid public or private easements that will inure to the
benefit of the Company. To Seller's Knowledge, no fact or condition exists which
would result in the termination of the current access from the Real Property to
any presently existing public highways or roads adjoining or situated on the
Real Property or to sewer or other utility service needed to serve the Real
Property for its intended use in the Business. All approvals, licenses and
permits required for said utilities have been obtained and are, and will be as
of the Closing, in full force and effect. All of said utilities are or will be
installed as necessary during the construction of the Improvements as set forth
in the Development Agreement.
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SECTION 3.12 COMPLIANCE WITH ENVIRONMENTAL LAWS. Except as set forth in Schedule
3.12 attached hereto:
(a) No Governmental Entity or any nongovernmental third party has notified the
Seller, or to the Knowledge of any Seller Party, any other party, of any alleged
violation or investigation of any suspected violation under the Environmental
Laws in connection with the ownership or operation of the Real Property,
including any litigation or cause of action alleging personal injury or property
damage caused by exposure to, or the disposal, release or migration of, any
Hazardous Materials. To Seller's Knowledge, the Real Property is in compliance
with the Environmental Laws;
(b) With respect to the ownership and operation of the Real Property, to the
Knowledge of the Seller Parties, no Hazardous Materials have been stored,
disposed of or arranged for the disposal thereon, except in compliance with the
Environmental Laws and there are no underground storage tanks located at, on or
under the Real Property;
(c) To the Knowledge of the Seller Parties, there have been no actions,
activities, circumstances, conditions, events or incidents, including, without
limitation, the generation, transportation, treatment, storage, release,
emission, discharge, presence or disposal of any Hazardous Materials on or from
any of the Real Property that could form the basis of any Environmental Claim
against the Seller or the Company;
(d) The Seller has not contractually assumed or succeeded to any liability of
any direct or indirect predecessors or any other Person related or with respect
to any Environmental Law; and
(e) To the Knowledge of the Seller Parties, there are no conditions presently
existing on, at or emanating from the Real Property, including, without
limitation, any condition created or that came into being prior to the ownership
of the Real Property by the Seller, or Glenview that may result in any
liability, investigation or clean-up cost under any Environmental Law.
SECTION 3.13 LITIGATION. There is no suit, action, proceeding, inquiry or
investigation (a "Claim") against or involving the Seller or any of its
properties or rights, pending or, to the Knowledge of the Seller Parties
threatened (including, without limitation any suit, action, proceeding or
investigation pursuant to Title 11 of the Civil Rights Act of 1964, the
Americans with Disabilities Act, the Age Discrimination in Employment Act, the
Family and Medical Leave Act of 1993, or any other federal, state or local law
regulating employment) nor to the Knowledge of the Seller Parties are there any
facts which might result in any such Claim. Except as set forth on Schedule 3.13
attached hereto, there is no judgment, decree, injunction, rule or order of any
Governmental Entity or any other Person (including, without limitation, any
arbitral tribunal) outstanding against the Seller and the Seller is not in
violation of any term of any judgment, decree, injunction or order outstanding
against it. Furthermore, there is no Claim by or before any Governmental Entity
or other Person pending or, to the Knowledge of the Seller Parties, threatened
which questions or challenges the validity of this Agreement or any action taken
or to be taken by the Seller pursuant to this Agreement or in connection with
the transactions contemplated hereby, and, to the Knowledge of the Seller, there
is no basis for any such Claim.
15
SECTION 3.14 CONTRACTS, OBLIGATIONS AND COMMITMENTS. Schedule 3.14 attached
hereto sets forth a list of all contractual agreements, whether written or oral,
or relating to or affecting the assets or the operation of the Business to which
the Seller is a party (the "Contracts"). The Seller has provided to MPT complete
and correct copies of all of the Contracts. Except as set forth on Schedule
3.14, (i) the Contracts are legally valid, binding and enforceable against the
Seller (and, to the best of the Seller's Knowledge, against the other parties
thereto) in accordance with their respective terms and are in full force and
effect; (ii) there are no defaults by the Seller, or to the best of the Seller's
Knowledge, any other party to the Contracts; (iii) the Seller has not received
written notice of any default, offset, counterclaim or defense under any
Contract; (iv) no condition or event has occurred which with the passage of time
or the giving of notice or both would constitute a default or breach by the
Seller of the terms of any Contract; and (v) the Contracts are in compliance
with Healthcare Fraud Laws.
SECTION 3.15 LICENSES. Schedule 3.15 attached hereto sets forth a current,
complete and accurate list of all licenses, permits, certificates of need and
other authorizations of Governmental Entities (the "Permits") which will be
required for the construction and development of the Hospital and the MOB and
the conduct of the Business. Except as set forth in Schedule 3.15, the Seller
possesses all such Permits, such Permits are in full force and effect and true
and correct copies of such Permits have been delivered to MPT. No notice from
any authority in respect to, as applicable, the threatened, pending or possible
denial, revocation, termination, suspension or limitation of any of the Permits
has been received by any Seller Party and no Seller Party has any Knowledge of
any proposed or threatened issuance of any such notice or of any grounds which
would form the basis for any such notice.
SECTION 3.16 ACCREDITATION; MEDICARE AND MEDICAID; THIRD PARTY PAYORS. Except as
set forth on Schedule 3.16 attached hereto, the Seller will enroll and become a
provider authorized to participate without restriction under Title XVIII of the
Social Security Act ("Medicare") and Title XIX of the Social Security Act
("Medicaid"), the Medicare and the Medicaid programs of the Commonwealth of
Pennsylvania and the TRICARE/CHAMPUS programs (the "Government Programs"). The
Seller expects to receive Medicare or Medicaid reimbursement with respect to the
Hospital and to be eligible to receive payment without restriction under
Medicare and Medicaid. Neither Seller nor any of the Principals or any other
Person who is either an officer or director of, or directly or indirectly owns
an equity interest in, the Seller (collectively, the "Seller Parties") nor, to
the Seller's Knowledge, any Physician or Service Provider (i) has been excluded,
suspended or debarred from, or otherwise ineligible for, participation in any
Government Program including Medicare or Medicaid, or (ii) has been convicted of
a criminal or civil offense related to conduct that would trigger an exclusion
from any Government Program.
SECTION 3.17 HEALTHCARE REGULATORY MATTERS.
(a) Accept as described on Schedule 3.17 hereto, none of the Seller, any Seller
Party or, to the Knowledge of any Seller Party, any Physician or Service
Provider (i) is a party to or has received notice of the commencement of any
investigation or debarment proceedings or any governmental investigation or
action (including any civil investigative demand or subpoena) under the False
Claims Act (31 U.S.C. Section 3729 et seq.), the Anti-Kickback Act of 1986 (41
U.S.C. Section 51 et seq.), the Federal Health Care Programs Anti-Kickback
statute (42 U.S.C. Section 1320a-7a(b)), the Ethics in Patient Referrals Act of
1989, as amended (▇▇▇▇▇ Law) (42 U.S.C. 1395nn),
16
the Civil Money Penalties Law (42 U.S.C. Section 1320a-7a), or the Truth in
Negotiations (10 U.S.C. Section 2304 et seq.), Health Care Fraud (18 U.S.C.
1347), Wire Fraud (18 U.S.C. 1343), Theft or Embezzlement (18 U.S.C. 669), False
Statements (18 U.S.C. 1001), False Statements (18 U.S.C. 1035), and Patient
Inducement Statute and equivalent state statutes or any rule or regulation
promulgated by a Governmental Entity with respect to any of the foregoing
("Healthcare Fraud Laws") affecting the Seller or the Business (and no grounds
for any such proceeding, investigation or action exist); and (ii) is not in full
compliance with all applicable Healthcare Fraud Laws.
(b) Accept as described on Schedule 3.17 hereto, none of Seller, any Seller
Party or, to the Knowledge of any Seller Party, any Physician or Service
Provider has ever been charged or implicated in any violation of any state or
federal statute or regulation involving false, fraudulent or abusive practices
relating to its participation in state or federally sponsored reimbursement
programs, including but not limited to false or fraudulent billing practices.
None of Seller, any Seller Party or, to the Knowledge of any Seller Party, any
Physician or Service Provider has engaged in any of the following: (i) knowingly
and willfully making or causing to be made a false statement or representation
of a material fact in any applications for any benefit or payment under Medicare
or Medicaid program; (ii) knowingly and willfully making or causing to be made
any false statement or representation of a material fact for use in determining
rights to any benefit or payment under Medicare or Medicaid program; (iii)
failing to disclose knowledge of any event affecting the initial or continued
right to any benefit or payment under Medicare or Medicaid program on its own
behalf or on behalf of another, with intent to secure such payment or benefit
fraudulently; (iv) knowingly and willfully soliciting, paying, or receiving any
remuneration (including kickback, bribe or rebate), directly or indirectly,
overtly or covertly, in cash or in kind or offering to pay such remuneration (a)
in return for referring an individual to a Person for the furnishing or
arranging for the furnishing of any item or service for which payment may be
made in whole or in part by Medicare or Medicaid, or (b) in return for
purchasing, leasing or ordering or arranging for or recommending the purchasing,
leasing or ordering of any good, facility, service, or item for which payment
may be made in whole or in part by Medicare or Medicaid; (v) presenting or
causing to be presented a claim for reimbursement for services that is for an
item or service that was known or should have been known to be (a) not provided
as claimed, or (b) false or fraudulent; or (vi) knowingly and willfully making
or causing to be made or inducing or seeking to induce the making of any false
statement or representation (or omitting to state a fact required to be stated
therein or necessary to make the statements contained therein not misleading) of
a material fact with respect to (a) a facility in order that the facility may
qualify for Governmental Entity certification or (b) information to be provided
under 42 USC Section 1320a-3.
(c) The Physicians' investment in and ownership of the Seller, if any, and the
referral of patients to the Hospital and the Business by such Physicians do not
and shall never violate any applicable Laws, including Healthcare Fraud Laws.
SECTION 3.18 ▇▇▇▇-▇▇▇▇▇▇ OBLIGATIONS. The Seller does not have any patient care
or other obligations under the Federal ▇▇▇▇-▇▇▇▇▇▇ program with respect to the
operation of the Hospital.
SECTION 3.19 MEDICAL STAFF MATTERS. Except as set forth in Schedule 3.19
attached hereto, there are no pending or, to the Knowledge of any Seller Party,
threatened appeals, challenges, disciplinary or corrective actions, or disputes
involving applicants to the medical staff of the
17
Hospital. For confidentiality purposes, all persons identified on Schedule 3.19
are identified by a Hospital-assigned number rather than name. True and correct
copies of Medical Staff Bylaws of the Hospital, the Hospital's Medical Staff
Rules and Regulations, and the Hospital's Medical Staff Hearing Procedures, all
as proposed to be in effect following completion of the Improvements, have been
previously delivered by the Seller to MPT.
SECTION 3.20 COMPLIANCE WITH LAW. The Seller (a) is in material compliance with
every applicable law, rule, regulation, ordinance, license, permit and other
governmental action and authority and every order, writ, and decree of every
Governmental Entity in connection with the ownership, conduct, operation and
maintenance of the Business and its ownership and use of its assets, and no
event has occurred or circumstance exists which (without notice or lapse of
time) would result in any noncompliance with any such law, rule, regulation,
ordinance, license permit, order, writ or decree; and (b) has timely made or
given all filings and notices required to be made by the Seller with the
regulatory agencies of any Governmental Entity.
SECTION 3.21 INTANGIBLE PROPERTY. A true and complete list of the trademarks,
service marks, and other intangible assets of the Seller to be used in the
operation of the Hospital and the MOB is set forth in Schedule 3.21 (the
"Intangible Property") attached hereto. The Seller owns or possesses adequate,
enforceable licenses or other rights to use all of the Intangible Property, and
no rights thereto have been granted to others by the Seller. Except as set forth
in Schedule 3.21, all of the Intangible Property is owned or used by the Seller
free and clear of all assignments, licenses, restrictions, encumbrances, charges
or claims for infringement, and none is subject to any outstanding order,
decree, judgment, stipulation or charge. There is no unauthorized use,
disclosure, infringement or misappropriation of any of the Intangible Property
by any third party. The Seller's use of the Intangible Property does not
infringe upon or otherwise violate the rights of others. No one has asserted to
the Seller that its use of the Intangible Property infringes upon the patents,
trade secrets, trade names, trademarks, service marks, copyrights or other
intellectual property rights of any other Person.
SECTION 3.22 RECORDS. True and complete copies of the Seller's Governing
Documents have been delivered to MPT prior to the execution and delivery of this
Agreement. The books of account, minute books, stock record books and other
records of the Seller, all of which have been made available to MPT, are
complete and correct. The minute books of the Seller contain records of all
meetings and other corporate actions of the directors and stockholders of the
Seller, and have been delivered to MPT prior to the execution and delivery of
this Agreement.
SECTION 3.23 SUBSIDIARIES. Except as set forth on Schedule 3.23 attached hereto
and except for the Special Purpose Entities, if created, the Seller owns no
Subsidiaries.
SECTION 3.24 BROKERS. Except as set forth on Schedule 3.24 attached hereto, no
Person is or will be entitled to any brokerage, finder's or other fee,
commission or payment in connection with or as a result of the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the Seller or any Seller Party.
SECTION 3.25 REPRESENTATIONS COMPLETE. The representations and warranties made
by theSeller in this Agreement and the statements made in or information
contained on any Schedules or certificates furnished by the Seller pursuant to
this Agreement do not contain and
18
will not contain, as of their respective dates and as of the Closing Date, any
untrue statement of a material fact, nor do they omit or will they omit, as of
their respective dates or as of the Closing Date, to state any material fact
necessary in order to make the statements contained herein or therein, in the
light of the circumstances under which they were made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE DEVELOPER
With the understanding that MPT and the Company shall rely hereon, and as a
material inducement to MPT and the Company to enter this Agreement and the
Development Agreement, the Developer hereby represents and warrants to MPT and
the Company as of the date hereof and as of the Closing Date as follows:
SECTION 4.1 ORGANIZATION. The Developer is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all requisite power and authority to carry on its business in
the Commonwealth of Pennsylvania as it is now being conducted, to own the assets
it now owns, and to perform its obligations under this Agreement and all other
documents executed by the Developer in connection with the transactions
contemplated hereby. Notwithstanding the foregoing, Developer does not represent
or warrant that it is licensed in the Commonwealth of Pennsylvania as a general
contractor. Schedule 4.1 attached hereto sets forth the ownership of the
Developer and, except as set forth therein, no other party has any equity
interest in the Developer or any option, warrant or other right to acquire the
same.
SECTION 4.2 AUTHORIZATION; ENFORCEMENT, ABSENCE OF CONFLICTS. Provided that the
Developer is not required by the Commonwealth of Pennsylvania to be licensed as
a general contractor, Developer has the requisite power and authority to
execute, deliver and carry out the terms of this Agreement, the Development
Agreement, to consummate the transactions contemplated hereby and thereby and to
conduct its businesses as now being conducted and as will be conducted in
connection with this Agreement and the Development Agreement. All actions
required to be taken by the Developer to authorize the execution, delivery and
performance of this Agreement and the Development Agreement, all documents
executed by the Developer which are necessary to give effect to this Agreement
and the Development Agreement and all transactions contemplated hereby and
thereby, have been duly and properly taken or obtained. No other action on the
part of the Developer is necessary to authorize the execution, delivery and
performance of this Agreement or the Development Agreement, all documents
necessary to give effect to this Agreement and the Development Agreement and all
transactions contemplated hereby and thereby. The execution and delivery of this
Agreement and the Development Agreement and the consummation of the transactions
contemplated hereby and thereby will not, with or without the giving of notice
and/or the passage of time: (i) violate or conflict with any provision of the
Developer's Governing Documents, (ii) violate or conflict with any provision of
any Law to which the Developer is subject; (iii) violate or conflict with any
judgment, order, writ or decree of any court applicable to the Developer; or
(iv) result in the breach or termination of any provision of, or create rights
of acceleration or constitute a default under, the terms of any debt or
obligation to which the Developer is a party or by which the Developer is bound.
19
SECTION 4.3 BINDING AGREEMENT. This Agreement and the Development Agreement
constitute or will constitute the valid and legally binding obligations of the
Developer, and are and will be enforceable against the Developer in accordance
with the respective terms hereof or thereof, except as enforceability may be
restricted, limited or delayed by applicable bankruptcy, insolvency or other
laws affecting creditors' rights generally and except as enforceability may be
subject to and limited by general principles of equity.
SECTION 4.4 FINANCIAL STATEMENTS. Developer has previously disclosed to MPT the
financial condition of Developer as of March 3, 2005 (the "Developer Balance
Sheet Date"), it being understood that he developer is a newly-formed entity
with no financial or operating history.
SECTION 4.5 NO UNDISCLOSED LIABILITIES. Except as set forth on Schedule 4.5
attached hereto, the Developer has no liabilities or obligations, whether
absolute, accrued, contingent or otherwise, including any potential future
liability arising out of acts or omissions which have already occurred, which
are not fully and accurately reflected or reserved against in the Developer
Balance Sheet except for liabilities or obligations that may have arisen in the
Ordinary Course of Business since the Developer Balance Sheet Date (none of
which results from, arises out of, relates to, is in the nature of, or was
caused by any breach of contract, breach of warranty, tort, infringement or
violation of law) and the Developer has no Knowledge of any fact, condition or
circumstance which could form the basis of any Claim in respect of any such
liability or obligation.
SECTION 4.6 [INTENTIONALLY OMITTED.]
SECTION 4.7 TRADE RELATIONS. Except as set forth on Schedule 4.7 attached
hereto, (i) there exists no present condition or state of facts or circumstances
known to the Developer which reasonably could be expected to materially
adversely affect the Developer or prevent the Developer from (A) conducting its
business in substantially the same manner in which it has heretofore been
conducted; or (B) timely performing all of its obligations and duties set forth
in the Development Agreement; and, (ii) to the best of the Developer's
Knowledge, there exists no actual or threatened termination, cancellation or
limitation of, or any modification or change in, the business relationship
between the Developer and any general contractor, subcontractor, vendor,
customer, lender or supplier.
SECTION 4.8 COMPLIANCE WITH LAW. The Developer (a) is in material compliance
with every applicable law, rule, regulation, ordinance, license, permit and
other governmental action and authority and every order, writ, and decree of
every Governmental Entity in connection with the ownership, conduct, operation
and maintenance of its business and its ownership and use of its assets, except
where noncompliance would not have a material adverse effect upon the
Developer's business, properties, assets, financial condition or ability to
perform this Agreement or the Development Agreement, and, to the Developer's
Knowledge, no event has occurred or circumstance exists which (without notice or
lapse of time) would result in any noncompliance with any such law, rule,
regulation, ordinance, license permit, order, writ or decree; and (b) has timely
made or given all filings and notices required to be made by the Developer with
the regulatory agencies of any Governmental Entity, except where the failure to
file or provide notice would not have a material adverse effect upon the
Developer's business, properties, assets, financial condition or ability to
perform this Agreement or the Development Agreement.
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SECTION 4.9 LITIGATION. There is no Claim pending or, to the Developer's
Knowledge, threatened against or affecting the Developer that has or would
reasonably be expected to have a material adverse effect upon the Developer's
business, properties, assets, financial condition or ability to perform this
Agreement or the Development Agreement in accordance with their respective
terms, or any aspect of the transactions contemplated hereby or thereby, and, to
the Knowledge of the Developer, there is no basis for any such Claim.
SECTION 4.10 RECORDS. True and complete copies of the Developer's Governing
Documents will be delivered to MPT prior to the Closing. The books of account,
minute books, stock record books and other records of the Developer, all of
which have been made available to MPT, are complete and correct. The minute
books of the Developer contain records of all meetings and other corporate
actions of the directors and stockholders of the Developer, and will be
delivered to MPT prior to the Closing of this Agreement
SECTION 4.11 BROKERS. No Person is or will be entitled to any brokerage,
finder's or other fee, commission or payment in connection with or as a result
of the transactions contemplated by this Agreement or the Development Agreement
based upon arrangements made by or on behalf of the Developer.
SECTION 4.12 REPRESENTATIONS COMPLETE. The representations and warranties made
by the Developer in this Agreement and the statements made in or information
contained on any Schedules or certificates furnished by the Developer pursuant
to this Agreement do not contain and will not contain, as of their respective
dates and as of the Closing Date, any untrue statement of a material fact, nor
do they omit or will they omit, as of their respective dates or as of the
Closing Date, to state any material fact necessary in order to make the
statements contained herein or therein, in the light of the circumstances under
which they were made, not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF MPT AND THE COMPANIES
MPT and the Company hereby represent and warrant to the Seller as of the
date hereof and as of the Closing Date as follows:
SECTION 5.1 ORGANIZATION. MPT is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware. MPT is
duly qualified as a foreign limited partnership in good standing under the laws
of the jurisdiction(s) in which the nature of the business conducted, or the
assets owned, operated and/or leased by MPT requires or makes such qualification
necessary. The Company are limited partnerships duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Company are
duly qualified as foreign limited partnerships in good standing under the laws
of the Commonwealth of Pennsylvania.
SECTION 5.2 AUTHORIZATION; ENFORCEMENT, ABSENCE OF CONFLICTS. Each of MPT and
the Company has the requisite limited partnership power and authority to conduct
their respective businesses as they are now being conducted and as proposed to
be conducted and to execute, deliver and carry out the terms of this Agreement
and all documents and agreements necessary to give effect to the provisions of
this Agreement, and to consummate the transactions
21
contemplated hereby and thereby. All limited partnership actions required to be
taken by MPT and the Company to authorize the execution, delivery and
performance of this Agreement, as well as all other documents, agreements and
instruments executed and delivered by MPT and the Company which are necessary to
give effect thereto (all such other documents, agreements and instruments
executed and delivered by MPT being referred to herein collectively as the "MPT
Instruments"; and, all such other documents, agreements and instruments executed
and delivered by the Company being referred to herein collectively as the
"Company Instruments") and all transactions contemplated hereby and thereby,
have been duly and properly taken or obtained in accordance and compliance with
MPT's Governing Documents and the Company' Governing Documents, as applicable.
No other action on the part of MPT, MPT's limited and/or general partners, the
Company, or the Company' limited and/or general partners, is necessary to
authorize the execution, delivery and performance of this Agreement, the MPT
Instruments, the Company Instruments and all transactions contemplated thereby.
This Agreement, the MPT Instruments and the Company Instruments are and will
constitute the valid and legally binding obligations of MPT and the Company, as
applicable, and are and will be enforceable against MPT and the Company, as
applicable, in accordance with their respective terms, except as enforceability
may be restricted, limited or delayed by applicable bankruptcy, insolvency or
other similar laws affecting creditors' rights generally and except as
enforceability may be subject to and limited by general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
SECTION 5.3 ABSENCE OF CONFLICTS. The execution, delivery and performance of
this Agreement by MPT and the Company, the execution, delivery and performance
of the MPT Instruments by MPT, the execution, delivery and performance of the
Company Instruments by the Company, and the consummation of the transactions
contemplated hereby and thereby will not, with or without the giving of notice
and/or the passage of time: (i) violate or conflict with any provision of the
Governing Documents of MPT or either Company; (ii) violate or conflict with any
provision of any Law to which MPT or the Company are subject or (iii) violate or
conflict with any judgment, order, writ or decree of any court applicable to MPT
or the Company.
SECTION 5.4 BINDING AGREEMENT. This Agreement and all agreements to which MPT
and the Company will become a party hereunder constitute or will constitute the
valid and legally binding obligations of MPT and the Company, as applicable, and
are and will be enforceable against them in accordance with the respective terms
hereof or thereof, except as enforceability may be restricted, limited or
delayed by applicable bankruptcy, insolvency or other laws affecting creditors'
rights generally and except as enforceability may be subject to and limited by
general principles of equity.
SECTION 5.5 LITIGATION. There is no Claim pending or, to MPT's Knowledge,
threatened against or affecting MPT that has had or would reasonably be expected
to have a material adverse effect on MPT's business, properties, assets,
financial condition or ability to perform this Agreement or any aspect of the
transactions contemplated hereby and, to the Knowledge of MPT, there is no basis
for any such Claim. There is no Claim pending or, to the Company' Knowledge,
threatened against or affecting the Company that would or would reasonably be
expected to prevent or impede MPT or the Company from consummating the
transactions contemplated hereby.
22
SECTION 5.6 POSSESSION OF PERMITS. MPT and the Company, where applicable,
possess all franchises, certificates, licenses, permits and other authorizations
from governmental political subdivisions or regulatory authorities, and all
patents, trademarks, service marks, trade names, copyrights, licenses and other
rights, free from burdensome restrictions, that are necessary for the ownership,
maintenance and operation of any of their properties and assets, except where
the failure to possess any of the foregoing would not prevent or impede MPT or
the Company from consummating the transactions contemplated hereby.
SECTION 5.7 COMPLIANCE WITH LAW. MPT and the Company, where applicable (a) are
in compliance with every applicable law, rule, regulation, ordinance, license,
permit and other governmental action and authority and every order, writ, and
decree of every Governmental Entity in connection with the ownership, conduct,
operation and maintenance of their businesses, and their ownership and use of
their assets, except where non-compliance would not prevent or impede MPT or the
Company from consummating the transactions contemplated hereby or the ability of
MPT or the Company' to perform this Agreement and, to the Knowledge of MPT and
the Company, no event has occurred or circumstance exists which (without notice
or lapse of time) would result in any noncompliance with any such law, rule,
regulation, ordinance, license permit, order, writ or decree which would prevent
or impede MPT or the Company from consummating the transactions contemplated
hereby; and (b) have timely made or given all filings and notices required to be
made by MPT and the Company with the regulatory agencies of any Governmental
Entity, except where such failure would prevent or impede MPT or the Company
from consummating the transaction contemplated hereby.
SECTION 5.8 BROKERS. No Person is or will be entitled to any brokerage, finder's
or other fee, commission or payment in connection with or as a result of the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of MPT or the Company.
SECTION 5.9 REPRESENTATIONS COMPLETE. The representations and warranties made by
MPT and the Company in this Agreement and the statements made in or information
contained on any Schedules or certificates furnished by MPT and the Company
pursuant to this Agreement do not contain and will not contain, as of their
respective dates and as of the Closing Date, any untrue statement of a material
fact, nor do they omit or will they omit, as of their respective dates or as of
the Closing Date, to state any material fact necessary in order to make the
statements contained herein or therein, in the light of the circumstances under
which they were made, not misleading.
ARTICLE VI
PRE-CLOSING COVENANTS
From and after the execution and delivery of this Agreement to and including the
Closing Date (unless a later date or time is specified), the applicable party
shall observe the following covenants:
SECTION 6.1 NO SHOP. Neither the Seller, the Developer, any Seller Party nor any
investment banker, attorney, accountant, representative or other Person retained
by or on behalf of any of the foregoing, shall directly or indirectly, initiate
contact with, respond to, solicit or encourage any inquiries, proposals or
offers by, participate in any discussions or negotiations with, enter into
23
any agreement with, disclose any information concerning the Seller or the
Seller's assets to, afford any access to the properties, books or records of the
Seller to, or otherwise assist, facilitate or encourage, any person in
connection with any possible proposal regarding a sale or lease of all or any
material portion of the assets (including all or any portion of the Real
Property) of the Seller or any similar transaction. The Seller shall notify MPT
immediately if any discussions or negotiations are sought to be initiated, any
inquiry or proposal is made, or any such information is requested.
SECTION 6.2 ACCESS. (a) Between the date hereof and the Closing (the "Review
Period"), the Seller shall (i) afford MPT and its authorized representatives
full and complete access to the Seller's employees, medical staff, and other
agents and representatives and during normal working hours to all books,
records, offices and other facilities of the Seller, (ii) permit MPT to make
such inspections and to make copies of such books and records as it may
reasonably require and (iii) furnish MPT with such financial and operating data
and other information relating to the Seller and the Real Property as MPT may
from time to time reasonably request. MPT and its authorized representatives
shall conduct all such inspections under the supervision of personnel of the
Seller in a manner that will minimize disruptions to the business and operations
of the Seller and in a manner as to maintain the confidentiality of this
Agreement. Nothing herein shall require the Seller to disclose any information
to the other if such disclosure would: (A) cause significant competitive harm to
its competitive position if the transactions contemplated hereby are not
consummated; (B) jeopardize any attorney-client or other legal privilege; or (C)
contravene any Law, fiduciary duty or binding agreement entered into prior to
the date of this Agreement (including any confidentiality agreement to which it
or its affiliates is a party); provided, however, that if the Seller relies on
this sentence of Section 6.2 as a basis for such non-disclosure, the Seller
shall nevertheless inform MPT of the general nature of the information not being
disclosed and the basis for such non-disclosure.
SECTION 6.3 CONFIDENTIALITY. The provisions of the Confidentiality Agreement
shall remain binding and in full force and effect until the Closing.
Notwithstanding anything to the contrary contained herein or in the
Confidentiality Agreement, the confidentiality obligations as they relate to the
transactions contemplated by this Agreement shall not apply to the purported or
claimed Federal income tax treatment of the transactions (the "Tax Treatment")
or to any fact that may be relevant to understanding the purported or claimed
Federal income tax treatment of the transactions (the "Tax Structure"), and each
party hereto (and any employee, representative, or agent of any party hereto)
may disclose to any and all persons, without limitation of any kind, the Tax
Treatment and Tax Structure of the transactions contemplated by this Agreement
and any materials of any kind (including any tax opinions or other tax analyses)
that relate to the Tax Treatment or Tax Structure. In addition, each party
hereto acknowledges that it has no proprietary or exclusive rights to any tax
matter or tax idea related to the transactions contemplated by this Agreement.
The preceding sentence is intended to ensure that the transactions contemplated
by this Agreement shall not be treated as having been offered under conditions
of confidentiality for purposes of the Confidentiality Regulations and shall be
construed in a manner consistent with such purpose. The information contained
herein, in the Schedules hereto or delivered to MPT or its authorized
representatives pursuant hereto shall be subject to the Confidentiality
Agreement as Information (as defined and subject to the exceptions contained
therein) until the Closing and, for that purpose and to that extent, the terms
of the
24
Confidentiality Agreement are incorporated herein by reference. All obligations
of MPT under the Confidentiality Agreement shall terminate simultaneously with
the Closing.
SECTION 6.4 REAL ESTATE SALES CONTRACT. Seller shall not enter into the Real
Estate Sales Contract without the prior approval of MPT, such approval not to be
unreasonably withheld. The Seller shall provide MPT with true and correct copies
of any proposed draft of, or amendment to, the Real Estate Sales Contract which
is proposed by any party from and after the date hereof and any such drafts or
amendments shall be subject to MPT's prior approval, such approval not be
unreasonably withheld. Subject to the terms and conditions of this Agreement, as
soon as practicable following the date hereof, the Seller shall transfer and
assign to the Company, and the Company shall accept and assume from the Seller,
the Seller's rights and obligations under the Real Estate Sales Contract.
SECTION 6.5 REGULATORY AND OTHER AUTHORIZATIONS, NOTICES AND CONSENTS.
(a) Each party hereto shall use all commercially reasonable efforts to obtain
all authorizations, consents, orders and approvals of all Governmental Entities
and officials that may be or become necessary for its execution and delivery of,
and the performance of its obligations pursuant to, this Agreement and each such
party will cooperate fully with the other parties hereto in promptly seeking to
obtain all such authorizations, consents, orders and approvals.
(b) The Seller shall give promptly such notices to third parties and use its
commercially reasonable efforts to obtain such third party consents and estoppel
certificates as MPT may in its sole and absolute discretion deem necessary or
desirable in connection with the transactions contemplated by this Agreement, as
may be or become necessary for its execution and delivery of, and performance of
its obligations under, this Agreement.
(c) MPT shall cooperate and use commercially reasonable efforts to assist the
Seller in giving such notices and obtaining such third party consents and
estoppel certificates; provided, however, that MPT shall not have any obligation
to give any guarantee or other consideration of any nature in connection with
any such notice, consent or estoppel certificate which MPT in its sole and
absolute discretion may deem adverse to the interests of MPT or either or the
Company.
SECTION 6.6 MUTUAL COVENANTS. The parties shall use their good faith reasonable
efforts to satisfy the conditions to the closing of the transactions
contemplated hereby. Without limiting the generality of the foregoing, the
respective parties shall execute and/or deliver, or use their respective good
faith reasonable efforts to cause to be executed and/or delivered, the documents
contemplated to be executed and/or delivered by them at Closing.
SECTION 6.7 SCHEDULE UPDATES. From the date hereof until the Closing Date, MPT
and the Company, on one hand, and the Seller and the Developer on the other
hand, shall immediately advise the other parties in writing of any additions or
changes to any Schedule to reflect any deficiencies or inaccuracies in such
Schedule or to reflect circumstances or matters which occur after the date of
this Agreement which, if existing prior to such date, would have been required
to be described in such Schedule; provided, however, that no additions or
changes made to any Schedule to correct deficiencies or inaccuracies in such
Schedule shall be deemed to cure any breach or inaccuracy of a representation or
warranty, covenant or agreement or to satisfy any
25
condition unless otherwise agreed to in writing by the other parties, but
provided further, however, that an addition or change made to any Schedule to
reflect circumstances or matters which occur after the date of this Agreement
shall be deemed to cure a breach or inaccuracy of a representation or warranty,
covenant or agreement, but shall not be deemed to satisfy any condition unless
agreed to in writing by the other party.
SECTION 6.8 CONDUCT OF BUSINESS BY THE SELLER PENDING THE CLOSING. The Seller
covenants and agrees that, during the period from the date hereof and continuing
until the earlier of the termination of this Agreement or the Closing Date,
unless MPT shall otherwise agree in writing, the Seller shall conduct the
Business only in, and the Seller shall not take any action except in, the
Ordinary Course of Business and in compliance in all material respects with all
applicable laws and regulations, and that the Seller shall use reasonable best
efforts to preserve substantially intact the business organization of the
Seller, to keep available the services of the current officers, employees and
consultants of the Seller and to preserve the present relationships of the
Seller with medical staff, suppliers and other persons with which the Seller has
significant business relations and the Seller shall not take any actions or omit
to take any actions which would cause the representations and warranties
described in Section 3.8 to be untrue.
SECTION 6.9 PUBLIC ANNOUNCEMENTS. Prior to the Closing Date, the parties agree
to consult with each other before any party hereto or any of their respective
affiliates issues any press release or makes any public statement with respect
to this Agreement or the transactions contemplated hereby and, except as may be
required by applicable law or any listing agreement with any national securities
exchange, will not issue, or permit to be issued, any such press release or
make, or permit to be made, any such public statement prior to such
consultation.
SECTION 6.10 ADVANCES. From and after the date hereof, MPT, or its Affiliates,
shall make cash advances (the "Preliminary Advances") to the Seller of up to,
but in no event in excess of, One Million Six Hundred Thousand and NO/100
Dollars ($1,600,000.00) to be used for the payment of certain costs and expenses
associated or incurred by the Seller in connection with the acquisition and
development of the Real Property, including, without limitation, the costs and
expenses of surveys, environmental, engineering and other third-party reports
related to the Real Property. MPT shall make such Preliminary Advances to the
Seller for the foregoing purposes within three (3) Business Days after the
Seller's written request therefor, which written requests shall set forth the
amount then being requested as well as a reasonably detailed description of
intended application of such Preliminary Advance. MPT shall not be required to
make any Preliminary Advances to the Seller if any Seller Party is in breach,
default or violation of this Agreement or any other agreement to which MPT or
any of its Affiliates is a party. In the event that the transactions
contemplated hereby close, all Preliminary Advances shall be included within the
definition of Total Development Costs under the Development Agreement and the
Lease (or if the Mortgage Alternative is elected by MPT, such preliminary
advances shall be added to the loan balance under the Loan Documents). In the
event that the transactions contemplated hereby do not close for any reason,
MPT's covenant to make the Preliminary Advances to the Seller shall terminate
and be of no further force or effect, and, after any party's delivery of a
notice of termination under Section 9.2, the Seller shall, within ninety (90)
days following the date of such notice of termination, reimburse MPT, with
interest of 10.75% (ten and seventy-five hundredths percent), with reimburse MPT
for all Preliminary Advances which
26
have been made as of such time (such reimbursement obligation being referred to
herein as the "Obligation"). The Principals are guaranteeing the Obligation as
provided in Section 6.11 below.
SECTION 6.11 GUARANTEE.
(a) The Principals, jointly and severally, hereby absolutely unconditionally and
irrevocably guarantee to and for the benefit of MPT and its Affiliates, the
Seller's full and prompt payment and performance of the Obligation, as the same
may be amended or modified from time to time, just as if the Obligation was that
of the Principals directly. If the Seller does not fully perform the Obligation,
the Principals shall, within five (5) Business Days after receipt of written
notice from MPT, perform and pay the Obligation, as if it constituted the direct
and primary obligation of the Principals. The Principals agree that MPT may, in
its sole discretion, seek satisfaction of the Obligation from either or both the
Seller and either of the Principals. The Obligation and liabilities of the
Principals under this Section 6.11 are continuing, absolute and unconditional,
shall not be subject to any counterclaim, recoupment, set-off, reduction or
defense based upon any claim that the Principals may have against the Seller,
MPT or any of their respective Affiliates, officers, directors, members,
shareholders, employees, agents and representatives, and shall remain in full
force and effect until the entire Obligation has been paid and performed in
full, without regard to, and without being released, discharged, impaired,
modified or in any way affected by, the occurrence from time to time of the
following events, circumstances or conditions, whether or not the Principals
shall have knowledge or notice thereof or shall have consented thereto:
(i) the failure or refusal to give notice to the Principals;
(ii) the compromise, settlement, release or termination of the Obligation;
(iii) any consent, extension or indulgence under or in respect of any
exercise or non-exercise of any right, remedy, power or privilege under or
with respect to the Obligation;
(iv) the amendment or modification of the Obligation; or
(v) the voluntary or involuntary liquidation or dissolution of, sale or
other disposition of all or substantially all of the assets of, or the
marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar proceeding
affecting, the Seller or its assets, or any action taken by any trustee or
receiver or by any court in any such proceeding, or the disaffirmance,
rejection or postponement in any such proceeding, of any of the Seller's,
either Principal's, or any other party's covenants, obligations,
undertakings or agreements.
(b) Each of the Principals hereby represents and warrants to MPT that (i) he has
full legal right, power and authority to enter into this guarantee, to incur the
obligations provided for herein, and to execute and deliver this Agreement; (ii)
this Agreement has been duly executed and delivered by such Principal and
constitutes his valid and legally binding obligation, enforceable against him in
accordance with its terms; (iii) no approval or consent of any foreign, federal,
state, county, local or other governmental or regulatory body, and no approval
or consent of any other person is required in connection with the execution and
delivery of this Agreement
27
or the consummation and performance by such Principal of the guarantee contained
in this Section 6.11; (iv) the execution and delivery of this Agreement and the
obligations created hereby will not conflict with or result in the breach or
violation of any of the terms or conditions of, or constitute (or with notice or
lapse of time or both would constitute) a default under any instrument, contract
or other agreement to which such Principal is a party or by or to which such
Principal or such Principal's assets or properties are bound or subject; or any
statute or any regulation, order, judgment or decree of any court or
governmental or regulatory body; and (v) such Principal is not a party to or, to
the Knowledge of such Principal, threatened with any litigation or judicial,
administrative or arbitration proceeding which, if decided adversely to such
Principal, would restrain, prohibit or materially delay the transactions
contemplated hereby.
(c) Each of the Principals waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon Seller and/or the other
Principal with respect to the Obligation guaranteed hereunder. Without limiting
the other provisions of this Section 6.11, this guarantee shall be construed as
a continuing, absolute and unconditional guarantee of performance and payment
without regard to the validity, regularity or enforceability of any obligations
or any other guarantee thereof or any other circumstance whatsoever (with or
without notice to or knowledge of the Principals) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the obligations of
the Principals under this guarantee, in bankruptcy or in any other instance. The
obligations and liabilities of the Principals hereunder shall not be conditioned
or contingent upon the pursuit by MPT of any right or remedy against the Seller
or against any other person which may be or become liable in respect of all or
any part of the Obligation. This guarantee is not merely a guarantee of
collection, but rather the obligations of the Principals hereunder are primary
and this guarantee constitutes a guarantee of payment.
(d) Notwithstanding any provision of this Section 6.11, the maximum liability of
▇▇▇▇▇▇▇▇▇▇ under the guarantee contained in this Section 6.11 shall be One
Million Three Hundred Thousand and No/100 Dollars ($1,300,000.00) and the
maximum liability of ▇▇▇▇▇▇▇▇ shall be Two Hundred Thousand and No/100 Dollars
($200,00.00).
ARTICLE VII
CLOSING CONDITIONS
SECTION 7.1 CONDITIONS TO THE OBLIGATIONS OF THE SELLER. The obligations of the
Seller to effect the transactions contemplated hereby shall be subject to the
fulfillment of the following condition(s), any one or more of which may be
waived by the Seller:
(a) All of the representations and warranties of MPT and the Company set forth
in this Agreement shall be true and correct when made and as of the Closing Date
as if made on the Closing Date.
(b) MPT and the Company shall have delivered, performed, observed and complied
with all of the items, instruments, documents, covenants, agreements and
conditions required by this Agreement to be delivered, performed, observed and
complied with by it prior to, or as of, the Closing.
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(c) MPT and the Company shall have executed, where applicable, and delivered to
the Seller the documents referenced in Section 8.4 hereof.
SECTION 7.2 CONDITIONS TO THE OBLIGATIONS OF MPT AND THE COMPANY. The
obligations of MPT and the Company to effect the transactions contemplated
hereby shall be further subject to the fulfillment of the following conditions,
any one or more of which may be waived by MPT or the Company:
(a) All of the representations and warranties of the Seller and the Developer
set forth in this Agreement shall be true and correct when made and as of the
Closing Date as if made on the Closing Date;
(b) The Seller, the Developer and the Principals shall have delivered,
performed, observed and complied with all of the items, instruments, documents,
covenants, agreements and conditions required by this Agreement to be delivered,
performed, observed and complied with by it prior to, or as of, the Closing;
(c) The Seller and the Developer shall not have suffered any change, event or
circumstance which has had, or would be reasonably expected to have, a Material
Adverse Effect;
(d) MPT and the Company shall have satisfactorily completed the due diligence
investigations of the Seller and the Real Property and shall be satisfied with
the results of such investigations;
(e) MPT and/or the Company shall have closed the acquisition of the Real
Property pursuant to the Real Estate Sales Contract (or Seller shall have closed
such acquisition under the Mortgage Alternative);
(f) All necessary approvals, consents, estoppel certificates and the like of
third parties to the validity and effectiveness of the transactions contemplated
hereby have been obtained, and all required governmental filings or approvals,
and lender approvals, have been satisfied;
(g) No portion of the Assets shall have been destroyed by fire or casualty;
(h) MPT and the Company shall have received copies of all permits, licenses,
certificates of need and other approvals of governmental authorities required
for the operation of the Assets for their intended use and written evidence
satisfactory to MPT and the Company that the operation and use of the Hospital
and MOB are in accordance with all applicable governmental requirements;
(i) MPT and the Company shall have received evidence that the Seller is
maintaining insurance on the Assets as required in the Lease and that MPT and
its lenders, if any, are named as additional insureds and, where applicable,
loss payees;
(j) The Seller shall have executed where applicable and delivered to MPT and the
Company the documents referenced in Section 8.2 hereof;
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(k) The Developer shall have executed where applicable and delivered to MPT and
the Company the documents referenced in Section 8.3 hereof;
(l) There shall not have been instituted by any creditor of the Seller or the
Developer, any Governmental Entity or any other Person (other than any Seller
Party, the Developer or any Affiliate of the foregoing), any suit, action,
proceeding or investigation which would adversely affect the Assets or seek to
restrain, enjoin or invalidate the transactions contemplated by this Agreement;
and
(m) MPT shall, after attempting in good faith to work with Seller to resolve any
healthcare regulatory issues relating to stock option in Seller proposed to be
issued to Best Dupres, M.D., be reasonably satisfied that such proposed options
are not problematic under applicable healthcare laws and regulations or, if MPT
is not so reasonably satisfied, such, option shall have been terminated.
ARTICLE VIII
CLOSING
SECTION 8.1 CLOSING DATE. The closing of the transactions contemplated hereby
(the "Closing") shall be held at the offices of Baker, Donelson, Bearman,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C. in Birmingham, Alabama on April 30, 2005, or on such
other date and such other place as the parties hereto shall mutually agree (the
actual date of closing being herein referred to as the "Closing Date").
SECTION 8.2 THE SELLER'S CLOSING DATE DELIVERABLES. On the Closing Date, the
Seller shall deliver, or cause to be delivered, to MPT and the Company the
documents listed below dated as of the Closing Date (unless otherwise expressly
indicated). In the event any of the documents listed below are not delivered on
or before the Closing Date, as required hereunder, MPT or the Company may at any
time on or before the Closing Date, at their election, waive the delivery of the
required documents; or, MPT at its election, by written notice to the Seller,
may terminate this Agreement.
(a) A duly executed ▇▇▇▇ of sale and assignment transferring all assets relating
to the Hospital, other than the Hospital Real Property, in form and substance
satisfactory to MPT Hospital (the "Hospital ▇▇▇▇ of Sale");
(b) A duly executed ▇▇▇▇ of sale and assignment transferring all assets relating
to the MOB, other than the MOB Real Property in form and substance satisfactory
to MPT Hospital (the "MOB ▇▇▇▇ of Sale");
(c) A certified copy of the resolutions of the directors and stockholders of the
Seller dated as of the date hereof and authorizing the Seller's execution,
delivery and performance of this Agreement and all other documents to be
executed in connection herewith;
(d) Certificates of existence and good standing of the Seller from the Secretary
of State of the State of Delaware, dated the most recent practical date prior to
the Closing Date;
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(e) Certificates of good standing and foreign qualification of the Seller from
the Secretary of the Commonwealth of the Commonwealth of Pennsylvania, dated the
most recent practical date prior to the Closing Date;
(f) Tenant estoppel certificates in form and substance satisfactory to MPT;
(g) The Search Reports dated the most recent practical date prior to the Closing
Date in form and substance satisfactory to MPT;
(h) The Lease, in substantially the form mutually acceptable to the parties and
consistent with the terms of the Commitment Letter (or, if the Mortgage
Alternative is selected, the Loan Documents and Conveyance Documents, in form
and substance mutually acceptable to the parties and consistent with the terms
of the Commitment Letter);
(i) Copies of any executed Tenant Leases;
(j) An unaudited balance sheet of the Seller, dated as of the closing Date and
certified as true and correct by the chief financial officer of the Seller and
the Principals, indicating that the tangible net worth of the Seller equals or
exceeds Five Million and No/100 Dollars ($5,000,000.00) which is personally
guaranteed by ▇▇▇▇▇▇▇▇▇▇ and such other Person as shall be approved by MPT, such
approval not to be unreasonably withheld or access to a working capital line of
credit of no less than Five Million and No/100 Dollars ($5,000,000);
(k) The Noncompete Agreement in form and substance satisfactory to MPT;
(l) Assignment of Rents and Leases in form and substance satisfactory to MPT;
(m) Security Agreement in form and substance satisfactory to MPT;
(n) Assignment of Management Agreement in form and substance satisfactory to
MPT;
(o) Subordination of Management Agreement in form and substance satisfactory to
MPT;
(p) The legal opinions of the law firm of Bone McAllester Norton PLLC, as
counsel for the Seller and Developer, in form and substance mutually acceptable
to the parties;
(q) An agreement or certificate executed by or on behalf of the Seller and dated
as of the Closing Date stating that (i) the representations and warranties of
the Seller made herein are true and correct on the Closing Date with the same
effect as though such representations and warranties had been made at and as of
the Closing Date and that such representations will survive the Closing, and
(ii) that all of the conditions to closing as set forth in this Agreement have
been satisfied;
(r) Such other instruments and documents as MPT reasonably deems necessary to
effect the transactions contemplated hereby;
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(s) Letters and certifications from all applicable utility companies confirming
and verifying that all required utilities are or will be available to the Real
Property and will be in sufficient quantities to meet the needs of the use and
operation of the Hospital and MOB thereon;
(t) Feasibility studies dated the most recent practical date prior to the
Closing Date, at the Seller's expense, in form and substance satisfactory to
MPT;
(u) A Closing Statement in form and content acceptable to the Seller and MPT;
(v) All necessary approvals, consents, estoppel certificates and the like of
third parties or Governmental Entities confirming and certifying the validity
and effectiveness of the transactions contemplated hereby; and
(w) Any other affidavits, certificates, instruments, records, correspondence and
other documents relating to the Real Property as MPT or the title company
issuing the title policy for the Real Property may reasonably require.
SECTION 8.3 CLOSING DATE DELIVERABLES OF THE DEVELOPER. On the Closing Date, the
Developer shall deliver to MPT the documents listed below dated as of the
Closing Date (unless otherwise expressly indicated).
(a) A certified copy of the resolutions of the governing body of the Developer
dated as of the date hereof authorizing the execution, delivery and performance
of this Agreement, the Development Agreement and all other documents to be
executed in connection herewith or therewith;
(b) Certificates of existence and good standing of the Developer from the
Secretary of State of the State of Delaware, dated the most recent practical
date prior to the Closing Date;
(c) Certificates of good standing and foreign qualification of the Developer
from the Secretary of the Commonwealth of the Commonwealth of Pennsylvania,
dated the most recent practical date prior to the Closing Date;
(d) The Development Agreement in the form and substance mutually acceptable to
the parties;
(e) INTENTIONALLY OMITTED;
(f) Affidavits or certifications in form, substance and content acceptable to
MPT confirming and verifying that as of the Closing Date there are no executed
or pending contracts, agreements or offers of any kind with regard to the
development and construction of the Hospital, the MOB and the Improvements; and
(g) Copies of all permits, licenses and other authorizations and copies of all
applications for such permits, licenses and other authorizations, relating to
the development and construction of the Hospital, the MOB and the Improvements.
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(h) An agreement or certificate executed by or on behalf of the Developer and
dated as of the Closing Date stating that (i) the representations and warranties
of the Developer made herein are true and correct on the Closing Date with the
same effect as though such representations and warranties had been made at and
as of the Closing Date and that such representations will survive the Closing,
and (ii) that all of the conditions to closing as set forth in this Agreement
have been satisfied;
SECTION 8.4 CLOSING DATE DELIVERABLES OF MPT AND/OR THE COMPANY. On the Closing
Date, MPT, as appropriate, shall deliver to the Seller and/or the Developer, as
appropriate, the documents listed below dated as of the Closing Date (unless
otherwise expressly indicated).
(a) A certified copy of the resolutions of the governing body of MPT dated as of
the date hereof authorizing the execution, delivery and performance of this
Agreement and all other documents to be executed in connection herewith;
(b) Certificates of existence and good standing of each of MPT and the Company
from the Delaware Secretary of State, dated the most recent practical date prior
to the Closing Date;
(c) Certificates of good standing and foreign qualification of the Company from
the Secretary of the Commonwealth of the Commonwealth of Pennsylvania, dated the
most recent practical date prior to the Closing Date;
(d) The Development Agreement in form and substance mutually acceptable to the
parties;
(e) INTENTIONALLY OMITTED;
(f) The Lease or other documentation described in Section 8.2(h) hereof;
(g) The Noncompete Agreement;
(h) A Closing Statement in form and content acceptable to the Seller and MPT;
and
(i) An agreement or certificate executed by or on behalf of MPT and the Company
and dated as of the Closing Date stating that (i) the representations and
warranties of MPT and the Company made herein are true and correct on the
Closing Date with the same effect as though such representations and warranties
had been made at and as of the Closing Date and that such representations will
survive the Closing, and (ii) that all of the conditions to closing as set forth
in this Agreement have been satisfied.
SECTION 8.5 COMMITMENT FEE. The Seller shall pay to MPT a commitment fee equal
to one percent (1%) of the Commitment Amount (the "Commitment Fee"). As an
inducement for MPT to commit to make the Preliminary Advances, Seller has paid
MPT the sum of Fifteen Thousand and No/100 Dollars ($15,000.00) (the
"Preliminary Fee") contemporaneously herewith and shall pay the remaining
Commitment Fee at Closing. In the event the Seller paid to MPT the Twenty
Thousand and No/100 Dollars ($20,000.00) deposit (the "LOI Deposit") as required
under the Commitment Letter, such LOI Deposit shall be credited against the
Commitment Fee to be paid to MPT at Closing. In the event the transaction
contemplated by this Agreement fails to close for
33
any reason, the Preliminary Fee and LOI Deposit shall be considered a fee earned
by MPT and MPT shall not be required to refund any portion of the Preliminary
Fee or the LOI Deposit.
ARTICLE IX
TERMINATION
SECTION 9.1 TERMINATION PRIOR TO CLOSING. Notwithstanding anything to the
contrary in this Agreement, the remaining obligations of the parties hereunder
may be terminated and the transactions contemplated hereby abandoned at any time
prior to Closing: (i) by mutual written consent of the Seller and MPT; (ii) by
the Seller if the conditions set forth in Section 7.2 shall not have been
satisfied on or before May 31, 2005; or (iii) by MPT if the conditions set forth
in Section 7.1 shall not have been satisfied on or before May 31, 2005.
SECTION 9.2 NOTICE OF TERMINATION PRIOR TO CLOSING. In the event of the
termination of this Agreement pursuant to Section 9.1, the party terminating
this Agreement shall give prompt written notice thereof to the other party, and
the transactions contemplated hereby shall be abandoned, without further action
by any party. Each filing, application and other submission relating to the
transactions contemplated hereby shall, to the extent practicable, be withdrawn
from the person to which it was made. The confidentiality provisions set forth
in this Agreement shall survive any termination of this Agreement.
Notwithstanding any statement contained in this Agreement to the contrary,
termination of this Agreement shall not relieve any party from liability for any
breach or violation of this Agreement that arose prior to such termination.
ARTICLE X
POST CLOSING COVENANTS
SECTION 10.1 JCAHO COMPLIANCE. The Seller shall, as of the Operational Date or
as soon as reasonably practicable thereafter, apply for and obtain accreditation
by the Joint Commission on Accreditation of Healthcare Organizations ("JCAHO").
SECTION 10.2 HIPAA COMPLIANCE. The Seller shall use commercially reasonable
efforts to be in compliance, upon the Operational Date, with the standards for
privacy of individually-identifiable health information which were promulgated
pursuant to the Health Insurance Portability and Accountability Act of 1996
("HIPAA").
SECTION 10.3 NECESSARY PERMITS. Except as set forth in Schedule 10.3, the Seller
either has or has begun applying for, and will have, as of the Operational Date,
obtained all Permits from all applicable federal, state and local authorities
and any other regulatory agencies necessary or proper in order to operate the
Hospital and the MOB and to conduct the Business.
SECTION 10.4 PARTICIPATION IN GOVERNMENT PROGRAMS. The Seller shall take all
actions necessary to cause the Hospital to be in compliance with the conditions
of participation for the Government Programs and to receive all approvals or
qualifications necessary for capital reimbursement.
SECTION 10.5 COMPLIANCE WITH WHOLE HOSPITAL EXCEPTION. The Seller shall operate
in compliance with the ▇▇▇▇▇ Law whole hospital exception as set forth in 42
C.F.R. Section 411.356(c) and will not operate as a specialty hospital as
defined in 42 C.F.R. Section 351. In addition, the Seller
34
will not cease providing any services as relied upon by counsel in issuing the
opinion attached hereto as Exhibit H without obtaining written approval of MPT
which will not be required if 42 C.F.R Section 411.356(c)(3)(ii) has been
repealed.
SECTION 10.6 POST-CLOSING ACCESS TO INFORMATION. The Seller, MPT and the Company
acknowledge that, subsequent to Closing, each may need access to the Assets and
to information, documents or computer data in the control or possession of the
other for purposes of concluding the transactions contemplated herein and for
audits, investigations, compliance with governmental requirements, regulations
and requests, the prosecution or defense of third party claims. Accordingly, the
Seller, MPT and the Company agree that they will make available to the other
parties and their agents, independent auditors and/or governmental entities such
documents and information as may be available relating to the Assets, the
Hospital and the MOB and will permit the other parties to make copies of such
documents and information at the requesting party's expense.
ARTICLE XI
INDEMNIFICATION
SECTION 11.1 INDEMNIFICATION OF MPT AND COMPANY. Subject to the limitations set
forth in this Article, the Seller agrees to indemnify, defend and hold harmless
MPT and the Company, their Affiliates and its respective officers, directors,
members, (general and limited) partners, shareholders, employees, agents and
representatives (collectively, the "MPT Indemnified Parties") from and against
all Damages asserted against or incurred by the MPT Indemnified Parties or any
of them arising out of or in connection with or resulting from (i) any breach
of, misrepresentation associated with or failure to perform under any covenant,
representation, warranty or agreement under this Agreement or the other
agreements contemplated hereby on the part of the Seller, or (ii) any liability
relating to the operation of the Business prior to Closing, other than the
liabilities described on Schedule 2.3 hereto. Subject to the limitations set
forth in this Article, the Developer agrees to indemnify, defend and hold
harmless MPT Indemnified Parties from and against all Damages asserted against
or incurred by the MPT Indemnified Parties or any of them arising out of or in
connection with or resulting from (i) any breach of, misrepresentation
associated with or failure to perform under any covenant, representation,
warranty or agreement under this Agreement or the other agreements contemplated
hereby on the part of the Developer, or (ii) any liability relating to the
operation of the Business prior to Closing, other than the liabilities described
on Schedule 2.3 hereto.
SECTION 11.2 MPT'S AGREEMENT TO INDEMNIFY. Subject to the limitations set forth
in this Article, MPT hereby agrees to indemnify, defend and hold harmless the
Seller, Developer, Seller's Affiliates and their respective officers, directors,
members, (general and limited) partners, shareholders, employees, agents and
representatives (collectively, the "Seller Indemnified Parties") from and
against all Damages asserted against or incurred by the Seller Indemnified
Parties or any of them arising out of or in connection with or resulting from
any breach of, misrepresentation associated with or failure to perform under any
covenant, representation, warranty or agreement under this Agreement or the
other agreements contemplated hereby on the part of the MPT.
35
SECTION 11.3 NOTIFICATION AND DEFENSE OF CLAIMS.
(a) A party entitled to be indemnified pursuant to Section 11.1 or Section 11.2
(the "Indemnified Party") shall notify the party liable for such indemnification
(the "Indemnifying Party") in writing of any claim or demand which the
Indemnified Party has determined has given or could give rise to a right of
indemnification under this Agreement, as soon as possible after the Indemnified
Party becomes aware of such claim or demand; provided, that the Indemnified
Party's failure to give such notice to the Indemnifying Party in a timely
fashion shall not result in the loss of the Indemnified Party's rights with
respect thereto except to the extent the Indemnified Party is materially
prejudiced by the delay.
If the Indemnified Party shall notify the Indemnifying Party of any claim or
demand pursuant to the provisions hereof, and if such claim or demand relates to
a claim or demand asserted by a third party against the Indemnified Party (a
"Third Party Claim"), the Indemnifying Party shall have the obligation either
(i) to pay such claim or demand, or (ii) defend any such Third Party Claim with
counsel reasonably satisfactory to the Indemnified Party. After the Indemnifying
Party has assumed the defense of such Third Party Claim, the Indemnifying Party
shall not be liable to the Indemnified Party under this Section 11.3 for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation, provided that the Indemnified Party shall have the right to
employ counsel, at the Indemnifying Party's expense, to represent it if (A) in
the Indemnified Party's reasonable opinion the Indemnifying Party is not
diligently prosecuting the defense of such Third Party Claim, (B) such Third
Party Claim involves remedies other than monetary damages and such remedies, in
the Indemnified Party's reasonable judgment, could have a material adverse
effect on such Indemnified Party, (C) the Indemnified Party may have available
to it one or more defenses or counterclaims that are inconsistent with one or
more defenses or counterclaims that may be alleged by the Indemnifying Party, or
(D) the Indemnified Party believes in its reasonable discretion that a conflict
of interest exists between the Indemnifying Party and the Indemnified Party with
respect to such third party claim or action, and in any such event the
reasonable fees and expenses of such separate counsel for the Indemnified Party
shall be paid by the Indemnifying Party. The Indemnified Party shall make
available to the Indemnifying Party or its agents all records and other
materials in the Indemnified Party's possession reasonably required by it for
its use in contesting any third party claim or demand.
(b) No Indemnified Party may settle or compromise any claim or consent to the
entry of any judgment with respect to which indemnification is being sought
hereunder without the prior written consent of the Indemnifying Party, unless
(i) the Indemnifying Party fails to assume and diligently prosecuting the
defense of such claim pursuant to Section 11.3(a) or (ii) such settlement,
compromise or consent includes an unconditional release of the Indemnifying
Party from all liability arising out of such claim and does not contain any
equitable order, judgment or term which includes any admission of wrongdoing or
could result in any liability (including regulatory liability) of the
Indemnifying Party or which would otherwise in any manner affect, restrain or
interfere with the business of the Indemnifying Party or any Affiliate of the
Indemnifying Party. An Indemnifying Party may not, without the prior written
consent of the Indemnified Party, settle or compromise any claim or consent to
the entry of any judgment with respect to which indemnification is being sought
hereunder unless such settlement, compromise or consent includes an
unconditional release of the Indemnified Party from all liability arising
36
out of such claim and does not contain any equitable order, judgment or term
which includes any admission of wrongdoing or could result in any liability
(including regulatory liability) of the Indemnified Party or which would
otherwise in any manner affect, restrain or interfere with the business of the
Indemnified Party or any of the Indemnified Party's Affiliates.
SECTION 11.4 EXCLUSIVE REMEDY. FROM AND AFTER CLOSING, THE PARTIES AGREE AND
ACKNOWLEDGE THAT THE INDEMNIFICATION RIGHTS PROVIDED IN THIS ARTICLE XI SHALL BE
THE SOLE AND EXCLUSIVE REMEDY OF THE PARTIES TO THIS AGREEMENT FOR BREACHES OF
THIS AGREEMENT AND FOR ALL DISPUTES ARISING UNDER OR RELATING TO THIS AGREEMENT
AND ANY ADDITIONAL AGREEMENTS OR DOCUMENTS EXECUTED OR DELIVERED IN OR ARISING
OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT FOR POST-CLOSING COVENANTS,
CASES WHERE SPECIFIC PERFORMANCE IS AVAILABLE AS A REMEDY AND EXCEPT IN CASES OF
FRAUD.
SECTION 11.5 LIMITATIONS ON CLAIMS.
(a) Notwithstanding anything in this Article XI to the contrary, no Seller
Damages or MPT Damages shall be payable pursuant to this Article XI unless and
until the aggregate amount of Damages asserted against such applicable
Indemnifying Party under this Article XI with respect to such Claims equals or
exceeds Fifty Thousand Dollars ($50,000) (the "Liability Threshold") and then
only to the extent of such excess.
(b) Following full indemnification as provided for hereunder, the Indemnifying
Party shall be subrogated to all rights of the Indemnified Party with respect to
all Persons relating to the matter for which indemnification has been made.
(c) The representations and warranties set forth in this Agreement shall survive
the Closing and shall expire twenty-four (24) months after the Effective Date.
Except as provided in Section 11.4, no claim for indemnification arising out of
a breach of representations and warranties in this Agreement may be brought
after the applicable time provided for in this Section 11.5(c).
(d) Notwithstanding any provision of this Agreement to the contrary, in the
event any claim is made by one party to this Agreement against another party to
this Agreement, the Non-Prevailing Party, and only the Non-Prevailing Party,
shall be responsible for paying the reasonable legal fees, costs and expenses of
the other party to the claim and the term "Damages," as used herein with respect
to a Non-Prevailing Party, shall be deemed not to include the legal fees and
expenses of such Non-Prevailing Party.
SECTION 11.6 INSURED LOSSES. The amount of any damages for which indemnification
is provided under this Article XI shall be net of any duplicative amounts
recovered by the Indemnified Party under insurance policies or from unaffiliated
third Persons with respect to such damages; provided, however, such Indemnified
Party shall have no duty or obligation to seek recovery of any available
insurance proceeds in advance of exercising its rights or remedies under this
Article XI to seek indemnification by the Indemnifying Party.
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ARTICLE XII
DISPUTE RESOLUTION
SECTION 12.1 GOVERNING LAW, JURISDICTION AND VENUE. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ALABAMA
APPLICABLE TO CONTRACTS EXECUTED AND PERFORMED IN SUCH STATE, WITHOUT GIVING
EFFECT TO CONFLICTS OF LAWS PRINCIPLES. EACH OF THE PARTIES HERETO IRREVOCABLY
AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT SITTING IN JEFFERSON COUNTY, THE CITY OF BIRMINGHAM, STATE OF
ALABAMA, OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO, THIS
AGREEMENT. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
OBJECTION TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT, AND IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY CLAIM THAT SUCH SUIT,
ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. SERVICE OF ANY
PROCESS, SUMMONS, NOTICE OR DOCUMENT BY REGISTERED MAIL ADDRESSED TO A PARTY AT
THE ADDRESS DESIGNATED PURSUANT TO SECTION 13.2 OF THIS AGREEMENT SHALL BE
EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PARTY FOR ANY ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT. A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT MAY BE ENFORCED IN ANY OTHER COURT TO WHOSE
JURISDICTION ANY OF THE PARTIES IS OR MAY BE SUBJECT.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 ASSIGNMENT. This Agreement is not assignable by any party without
the prior written consent of the other party hereto. Notwithstanding the
foregoing, MPT and the Company may at any time and without the consent of the
Seller assign all of their respective rights and obligations hereunder to one or
more of its affiliates; provided, however, that no such assignment shall relieve
or release MPT or the Company from their obligations hereunder.
SECTION 13.2 NOTICE. All notices, demands, requests and other communications or
documents required or permitted to be provided under this Agreement shall duly
be in writing and shall be given to the applicable party at its address set
forth below or such other address as the party may later specify for that
purpose by notice to the other party:
If to any Seller Party: Bucks County Oncoplastic Institute, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Chief Manager
38
With a copy to: Bone McAllester Norton PLLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to the Developer: DSI Facility Development, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Chief Manager
With a copy to: Bone McAllester Norton PLLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to MPT or the Company: c/o Medical Properties Trust, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
With a copy to: Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Each notice shall, for all purposes, be deemed given and received:
(i) if by hand, when delivered;
(ii) if given by nationally recognized and reputable overnight delivery
service, the Business Day on which the notice is actually received by the
party; or
(iii) if given by certified mail, return receipt requested, postage
prepaid, the date shown on the return receipt as having been received or
refused.
SECTION 13.3 SYNDICATION. Subject to applicable healthcare regulatory
requirements, MPT will permit up to twenty percent (20%) of the Company to be
owned by local or area physicians. MPT and the Seller will work together to
decide which physicians receive an opportunity to invest in the Company. The
physicians will invest on an equal basis with MPT.
SECTION 13.4 SECURITIES OFFERING AND FILINGS. Notwithstanding anything contained
herein to the contrary, the Seller Parties and the Developer agree to cooperate
with MPT in connection with any securities offerings and filings and, in
connection therewith, the Seller Parties shall furnish MPT with such financial
and other information as MPT shall request. MPT shall have
39
the right of access, at reasonable business hours and upon advance notice, to
the Real Property and all documentation and information relating to the Real
Property and have the right to disclose any information regarding this
Agreement, the Commitment Letter, the Seller Parties, the Developer, the Real
Property and all other agreements executed in connection herewith and all other
documents in connection with the transactions contemplated hereby, and such
other additional information which MPT may reasonably deem necessary.
SECTION 13.5 EXPENSES. The Seller shall pay all costs and expenses incurred by
the Seller, MPT and the Company in connection with the transactions contemplated
hereby, including, without limitation, the cost of survey, appraisal,
environmental, title and other third-party reports and all document stamps,
transfer, excise, recording, gains, sales, bulk sales, use and similar
conveyance Taxes and fees imposed by reason of and associated with the
transactions contemplated hereby (including any other expenses incurred by MPT
or its Affiliates in connection with the Real Estate Sales Contract) and by
deficiency, interest or penalty asserted with respect thereto, as well as the
cost of the survey, the title insurance and all title endorsements required by
MPT and its lenders, and all attorneys' fees an expenses.
SECTION 13.6 CAPTIONS. The section and paragraph headings or captions appearing
in this Agreement are for convenience only, are not a part of this Agreement,
and are not to be considered in interpreting this Agreement.
SECTION 13.7 INTERPRETATION. In this Agreement, unless the context otherwise
requires:
(a) References to this Agreement are references to this Agreement and to the
Schedules and Exhibits hereto;
(b) References to Articles and Sections are references to articles and sections
of this Agreement;
(c) References to any party to this Agreement shall include references to its
respective successors and permitted assigns;
(d) References to a judgment shall include references to any order, writ,
injunction, decree, determination or award of any court or tribunal;
(e) The terms "hereof," "herein," "hereby," and any derivative or similar words
will refer to this entire Agreement including the recitals and the preamble;
(f) References to any document (including this Agreement) are references to that
document as amended, consolidated, supplemented, negated or replaced by the
parties from time to time;
(g) References to any law are references to that law as of the Closing Date,
unless clearly indicated otherwise, and shall also refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise;
(h) The word "including" shall mean including, without limitation; and
40
(i) The word "Affiliate" shall mean, as to the entity in question, any person or
entity that directly or indirectly controls, is controlled by, or is under
common control with, the entity in question and any successors or assigns of
such entities; and the term "control" means possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
an entity whether through ownership of voting securities, by contract or
otherwise.
SECTION 13.8 ENTIRE AGREEMENT; MODIFICATION. This Agreement, including the
Exhibits and Schedules hereto, and other written agreements executed and
delivered at Closing by the parties hereto, constitute the entire agreement and
understanding of the parties with respect to the subject matter of this
Agreement. This Agreement supersedes any prior oral or written agreements
between the parties with respect to the subject matter of this Agreement. It is
expressly agreed that there are no verbal understandings or agreements which in
any way change the terms, covenants, and conditions set forth in this Agreement,
and that no modification of this Agreement and no waiver of any of its terms and
conditions shall be effective unless it is made in writing and duly executed by
the parties hereto.
SECTION 13.9 SCHEDULES AND EXHIBITS. All Schedules and Exhibits referred to in
this Agreement and attached hereto shall be deemed a part of this Agreement and
are hereby incorporated herein by reference.
SECTION 13.10 SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
SECTION 13.11 CONSTRUCTION. The parties hereby agree that each has played an
equal part in the negotiations and drafting of this Agreement, and in
interpreting the provisions hereof, therefore, there shall be no construction or
interpretation of this Agreement for or against either party based upon who
drafted the same.
SECTION 13.12 FURTHER ASSURANCES. From time to time after the Closing and
without further consideration, the Seller shall execute and deliver to the
Company such instruments of sale, transfer, conveyance, assignment, consent or
other instruments as may be reasonably requested by MPT in order to vest all
right, title and interest of the Seller in and to the assets conveyed and
delivered at the Closing or as otherwise required to carry out the purpose and
intent of this Agreement.
SECTION 13.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Executed signature pages
to this Agreement may be delivered by facsimile transmission and any such
signature page shall be deemed an original.
SECTION 13.14 BINDING EFFECT. This Agreement shall bind and inure to the benefit
of the parties hereto and their successors and assigns; provided, however, that
this Agreement shall not inure to the benefit of any assignee pursuant to an
assignment which violates the terms of this Agreement.
41
[Signatures appear on the following pages.]
42
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have caused this Agreement to be executed by their duly authorized officers on
the date first written above.
MPT:
MPT OPERATING PARTNERSHIP, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Chairman, President and CEO
MPT HOSPITAL:
MPT OF BUCKS COUNTY HOSPITAL, L.P.
BY: MPT OF BUCKS COUNTY HOSPITAL, LLC
ITS: GENERAL PARTNER
BY: MPT OPERATING PARTNERSHIP, L.P.C
ITS: ITS SOLE MEMBER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Chairman, President and CEO
43
SELLER:
BUCKS COUNTY ONCOPLASTIC INSTITUTE, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, M.D
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, M.D.
Its: Chief Manager
PRINCIPALS:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, M.D
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, M.D.
/s/ M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
DEVELOPER:
DSI FACILITY DEVELOPMENT LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, M.D
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, M.D.
Title: Chief Manager
44
EXHIBIT A
Bucks County Hospital/MOB site, Proposed ▇▇▇ '▇' ▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ of Tax Map Parcel 2-35-1
All the certain tract of land situate on the Westerly side of ▇▇▇▇▇▇▇ Drive,
Bensalem Township, Bucks County, Penna. as shown on a Record Plan (not yet
recorded), 'Bucks County Hospital/MOB DSI Corporation, Proj. No. 04001, Glenview
Corporate Center' prepared by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ dated Feb 11, 2005.
Beginning at a common corner of Bucks County Hospital/MOB and the 'ITT' property
(tax parcel 2-35-1-8) on the Westerly legal right-of-way of ▇▇▇▇▇▇▇ Drive, 60'
wide.
1) Thence along the ITT property South 16 degrees 03'24" West 80.60' to a
concrete monument found
2) Thence still along the ITT property South 09 degrees 39'43" West
403.74' to a point
3) Thence still along the ITT property South 80 degrees 20'17" East
171.88' to a point
4) Thence still along the IT property South 44 degrees 27'04" East 80.00'
to a corner in line of the boundary of Glenview Corporate Center and
along various adjoining property owners
5) Thence along the boundary of Glenview Corporate Center South 45
degrees 32'56" West 344.95' to a point
6) Thence still along the boundary of Glenview Corporate Center South 30
degrees 16'44" West 676.09' to a point, a corner of remaining lands of
tax parcel 2-35-1, of which this was a part
7) Thence along tax parcel 2-35-1 North 59 degrees 43'16" West 26.82' to
a point
8) Thence still along parcel 2-35-1 North 04 degrees 53'26" East 99.20'
to a point
9) Thence still along parcel 2-35-1 North 28 degrees 05'21" East 36.24'
to a point
10) Thence still along parcel 2-35-1 North 01 degrees 18'13" West 19.91'
to a point
11) Thence still along parcel 2-35-1 North 23 degrees 51'58" East 501.50'
to a point
12) Thence still along parcel 2-35-1 North 80 degrees 05'18" West 217.44'
to a point
13) Thence still along parcel 2-35-1 North 01 degrees 18'13" West 182.67'
to a point
A-1
14) Thence still along parcel 2-35-1 North 12 degrees 22'52" West 136.82'
to a point
15) Thence still along parcel 2-35-1 South 62 degrees 45'33" West 47.59'
to a point
16) Thence still along parcel 2-35-1 North 05 degrees 32'12" West 140.76'
to a point
17) Thence still along parcel 2-35-1 North 13 degrees 45'44" West 377.69'
to a point
18) Thence still along parcel 2-35-1 North 32 degrees 14'28" East 550.47'
to a point
19) Thence still along parcel 2-35-1 South 73 degrees 10'35" East 250.00'
to a point on the Westerly side of ▇▇▇▇▇▇▇ Drive
20) Thence along the Westerly side of ▇▇▇▇▇▇▇ Drive South 16 degrees
47'24" West 182.15' to a point of curvature
21) Thence still along ▇▇▇▇▇▇▇ Drive and a curve to the left having a
radius of 235.00' the arc distance of 372.15' to the point of
beginning
Containing 15.000 Acres
2
EXHIBIT B
Bucks County Hospital/MOB site, Proposed ▇▇▇ '▇' ▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ of Tax Map Parcel 2-35-1
All the certain tract of land situate on the Westerly side of ▇▇▇▇▇▇▇ Drive,
Bensalem Township, Bucks County, Penna. as shown on a Record Plan (not yet
recorded), 'Bucks County Hospital/MOB DSI Corporation, Proj. No. 04001, Glenview
Corporate Center' prepared by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ dated Feb 11, 2005.
Beginning at a common corner of Bucks County Hospital/MOB and the 'ITT' property
(tax parcel 2-35-1-8) on the Westerly legal right-of-way of ▇▇▇▇▇▇▇ Drive, 60'
wide.
22) Thence along the ITT property South 16 degrees 03'24" West 80.60' to a
concrete monument found
23) Thence still along the ITT property South 09 degrees 39'43" West
403.74' to a point
24) Thence still along the ITT property South 80 degrees 20'17" East
171.88' to a point
25) Thence still along the IT property South 44 degrees 27'04" East 80.00'
to a corner in line of the boundary of Glenview Corporate Center and
along various adjoining property owners
26) Thence along the boundary of Glenview Corporate Center South 45
degrees 32'56" West 344.95' to a point
27) Thence still along the boundary of Glenview Corporate Center South 30
degrees 16'44" West 676.09' to a point, a corner of remaining lands of
tax parcel 2-35-1, of which this was a part
28) Thence along tax parcel 2-35-1 North 59 degrees 43'16" West 26.82' to
a point
29) Thence still along parcel 2-35-1 North 04 degrees 53'26" East 99.20'
to a point
30) Thence still along parcel 2-35-1 North 28 degrees 05'21" East 36.24'
to a point
31) Thence still along parcel 2-35-1 North 01 degrees 18'13" West 19.91'
to a point
32) Thence still along parcel 2-35-1 North 23 degrees 51'58" East 501.50'
to a point
33) Thence still along parcel 2-35-1 North 80 degrees 05'18" West 217.44'
to a point
34) Thence still along parcel 2-35-1 North 01 degrees 18'13" West 182.67'
to a point
B-1
35) Thence still along parcel 2-35-1 North 12 degrees 22'52" West 136.82'
to a point
36) Thence still along parcel 2-35-1 South 62 degrees 45'33" West 47.59'
to a point
37) Thence still along parcel 2-35-1 North 05 degrees 32'12" West 140.76'
to a point
38) Thence still along parcel 2-35-1 North 13 degrees 45'44" West 377.69'
to a point
39) Thence still along parcel 2-35-1 North 32 degrees 14'28" East 550.47'
to a point
40) Thence still along parcel 2-35-1 South 73 degrees 10'35" East 250.00'
to a point on the Westerly side of ▇▇▇▇▇▇▇ Drive
41) Thence along the Westerly side of ▇▇▇▇▇▇▇ Drive South 16 degrees
47'24" West 182.15' to a point of curvature
42) Thence still along ▇▇▇▇▇▇▇ Drive and a curve to the left having a
radius of 235.00' the arc distance of 372.15' to the point of
beginning
Containing 15.000 Acres
2
EXHIBIT C
Ancillary Hospital Assets.
None.
C-1
EXHIBIT D
Ancillary MOB Assets.
None.
D-1